In the case of State ex rel. Hemphill v. Ohio State Emp. Relations Bd., 2022-Ohio-2299, the appellate court denied a state employee’s petition for a writ of mandamus, or extraordinary court order, where a state employee’s unfair labor practice charge was untimely, and the Ohio State Employment Relations Board (“SERB”) did not abuse its discretion in dismissing the charge for lack of probable cause where the employee failed to provide any evidence of a violation.
Here, the state employee was terminated from her position for allegedly violating a job policy. She filed a grievance which was denied, and then sought to arbitrate her grievance but later withdrew and filed an unfair labor practice charge with SERB, alleging that her employer was intimidating and coercing her not to pursue the grievance further, but failed to respond to SERB’s investigation. SERB dismissed the charge for lack of probable cause. The employee then filed a petition for a writ of mandamus, which was denied. The employee argued that the denial of the petition was an error because SERB abused its discretion in determining that her unfair labor practice charge was untimely and not supported by probable cause. The appellate court disagreed with the employee.
In support of its decision, the appellate court explained that “R.C. 4117.12(B) requires SERB to issue a complaint and conduct a hearing on an unfair labor practice charge if, following an investigation, it has probable cause to believe that a violation has occurred.” State ex rel. Hemphill, ¶ 11, citing State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 2002-Ohio-2839, ¶ 33. The appellate court found that SERB did not abuse its discretion because the employee filed her unfair labor practice charge after the 90-day statute of limitations period, and, even if she would have timely filed the charge, she failed to provide SERB with any evidence or documentation regarding the charge. Thus, SERB had no probable cause to believe a violation occurred and correctly dismissed the charge.
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Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.