State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn.State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn.
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- Before:
- Alice Robie Resnick
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[Cite as State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn. (1993), Ohio St.3d .]
State Employment Relations Board -- Unfair labor practice charge -- “In part” test used to determine the actual motivation of an employer charged with an unfair labor practice, construed and applied.
1. The “in part” test to determine the motivation of an employer charged with an unfair labor practice is mandated by
2. Under the “in part” test to determine the actual motivation of an employer charged with an unfair labor practice, the proponent of the charge has the initial burden of showing that the action by the employer was taken to discriminate against the employee for the exercise of rights protected by
Appeal from the Court of Appeals for Ross County, No. 1732.
Appellant, Daniel Kelley, began employment as a vocational agriculture teacher at Adena High School on July 1, 1976. Appellee, Adena Local School District Board of Education (“the board of education“), employed appellant under a series of limited contracts, including a five-year limited contract which expired in 1984. In April 1984, the board of education issued appellant a two-year probationary contract, and declined to issue the continuing contract for which he was eligible. The board of education, in issuing the probationary contract, followed the recommendations of Kenneth Putnam, principal of Adena High School, and Paul D. Murphy, superintendent of schools.
In addition to classroom instruction, appellant‘s duties as a teacher of vocational agriculture included visitation of students to observe their employment in agriculture-related businesses. In observing students, appellant was
Several months before recommending that appellant receive a probationary contract, Principal Putnam, in an evaluation of appellant‘s performance dated February 28, 1984, graded appellant as “effective” in most evaluated areas. Appellant was graded as “needs improvement” in some areas, including establishing goals, keeping accurate records, accepting responsibility, and dependability. Appellant did not receive a grade of “unsatisfactory” in any of the twenty-two evaluation areas. The key at the top of the evaluation form explains that a grade of “effective” means that a teacher‘s performance has “[m]et district expectations” in that area; a grade of “unsatisfactory” means that the teacher‘s performance “[d]id not meet district expectations” and was a “possible consideration for non-renewal.”
Superintendent Murphy advised appellant of Putnam‘s recommendation of a probationary contract, informing appellant that Murphy would support Putnam‘s recommendation. Murphy also informed appellant that his contract status would be evaluated at the end of the two-year period, at which time appellant either would be offered a continuing contract or would be nonrenewed pursuant to
“1. Your providing Mr. Putnam with an accurate daily work schedule for your extended service days and time spent outside of the classroom to meet Mr. Putnam‘s approval.
“2. The fact that you will meet the above mentioned schedule when provided unless prior notice is served to Mr. Putnam that you have to make changes.
“3. The fact that you will follow through and meet the obligations of any or all above mentioned schedule changes to the satisfaction of Mr. Putnam.”
Appellant, a member of the Adena Education Association (“the teachers’ union“), which had a collective bargaining agreement with the school board, filed a grievance in June 1984, claiming that the failure to offer a continuing contract violated the agreement. Appellant‘s grievance also objected to the placement of an anonymous “survey” in his personnel file, which detailed alleged instances of appellant‘s failure to comply with his student visitation schedule. The grievance was submitted to arbitration, with the arbitrator
During the appellant‘s two-year probationary period, school officials evaluated his job performance several times. In an evaluation dated January 30, 1985, Principal Putnam again graded appellant as “effective” in most areas, this time including the area of keeping accurate records. Appellant was graded as “needs improvement” in some areas, including accepting responsibility and dependability. Once again, appellant received no grade of “unsatisfactory.”
Putnam subsequently assumed the post of superintendent of the school district in 1985. Putnam‘s successor as principal of Adena High School, Jake Grooms, in an evaluation dated November 20, 1985, graded appellant as “effective” in most areas, but as “needs improvement” in two areas: adhering to board policies and accepting responsibility. Appellant received no grade of “unsatisfactory.” On February 5, 1986, appellant was graded as “effective” in all areas by Grooms. Later that month, Grooms recommended to Putnam that appellant be issued a continuing contract.
On March 27, 1986, Putnam recommended to the board of education that appellant‘s teaching contract not be renewed. In a memorandum explaining his recommendation, Putnam stated: “Accurate daily work schedules have not been kept.” Putnam went on to list specific instances when appellant either failed to submit proper work schedules or failed to adhere to established schedules. In the memorandum, Putnam informed the board members that a conversation with a supervisor from the Ohio Agricultural Education Service (which promulgates guidelines for vocational agriculture teachers) reinforced his position that “Mr. Kelley‘s performance in afternoon and extended time use is below expectancies.”
The board of education unanimously accepted Putnam‘s recommendation, and in April 1986 appellant‘s contract was not renewed. This decision effectively ended appellant‘s employment, pursuant to
On June 30, 1986, the teachers’ union filed an unfair labor practice (“ULP“) charge on appellant‘s behalf with the State Employment Relations Board (“SERB“). The ULP charge alleged that appellant was not issued a continuing contract because he had filed a grievance over the school board‘s 1984 decision to issue him a two-year limited contract instead of a continuing
SERB conducted an investigation and found probable cause to believe that a ULP had been committed. On August 14, 1987, SERB issued a complaint alleging that the board of education‘s decision to nonrenew appellant “was due in whole or in part because [sic] the employee had engaged in activities protected by
When SERB issued the complaint, it scheduled an evidentiary hearing for August 24, 1987. The board of education moved for a continuance of the hearing, which was granted by SERB‘s hearing officer. The hearing was rescheduled for October 26, 1987. The board of education filed an answer to the complaint on October 23, 1987. In addition to denying the allegations that appellant‘s nonrenewal was based on the exercise of rights protected by
At the hearing, SERB and appellant (who had intervened in the action) argued that the board of education‘s answer was untimely, and moved that the allegations of the complaint be deemed admitted pursuant to
Because the board of education was deemed to have admitted that appellant had fulfilled the areas of improvement, the hearing officer precluded the presentation of any evidence to the contrary on that issue. However, the board of education was allowed to present evidence that appellant‘s nonrenewal was unrelated to the exercise of activities protected by
The hearing officer recommended that SERB order the board of education to immediately offer reinstatement to appellant with tenure effective at the commencement of the 1986-1987 school year and to compensate him for the same period (minus unemployment compensation or income from other employment).
In an “Order and Opinion” issued December 29, 1989, SERB overruled the board of education‘s exceptions and adopted the proposed order. SERB determined the hearing officer was correct in ruling that the board of education‘s answer was late, and so found that the factual allegations of the complaint were appropriately deemed admitted. SERB ultimately concluded that the board of education committed a ULP in violation of
In its opinion SERB stated: “*** the preponderance of the evidence supports the conclusion that Putnam‘s stated reason for not renewing Kelley‘s contract was a pretextual cover for an intent to retaliate for Kelley‘s exercise of his protected contractual grievance rights.” SERB thus determined that this was a “pretext” case (one in which the employer‘s sole motivation is to retaliate for the employee‘s exercise of protected rights) rather than a “mixed motive” case (one in which an employer‘s action is partly motivated by a desire to retaliate and partly by legitimate reasons). SERB ordered the board of education to offer appellant a continuing contract, and awarded appellant back pay, minus any unemployment compensation or income from other employment received in the meantime.
The board of education appealed SERB‘s order to the Ross County Court of Common Pleas. The board of education contended, in part, that SERB erred (1) in ruling that the board of education‘s answer was untimely and in deeming the factual allegations of the complaint admitted on that basis, (2) in
After considering the record, a court-appointed referee issued a report, which sustained the board of education‘s first assignment of error. The referee determined that
Rather than recommending remand to SERB for a reevaluation of the facts, the referee proceeded to review the evidence relating to whether appellant had fulfilled the areas of improvement, which SERB had not considered due to the deemed admissions. The referee‘s report also partially sustained the assignment of error regarding the board of education‘s motivation, determining that this was not a pretext case. However, because the referee found that SERB had established that appellant‘s nonrenewal was motivated at least in part by a desire to retaliate against appellant for his exercise of protected rights in filing the grievance, the referee found that this was a “mixed motive” case. SERB‘s position on mixed motive cases at that time was that if an employer‘s actions were motivated at least “in part” by a desire to retaliate against an employee for the exercise of protected rights, then the discharge (or nonrenewal in this case) is unlawful. See In re Gallia-Jackson-Vinton Joint Vocational School Dist. Bd. of Edn. (Nov. 13, 1986), SERB No. 86-044. The referee applied that approach, and ultimately recommended that SERB‘s order be affirmed, because substantial evidence in the record supported SERB‘s conclusion that a ULP occurred. On September 26, 1990, the court approved the referee‘s report and adopted it as its judgment.
The board of education appealed to the Court of Appeals for Ross County. In its first assignment of error, the board of education asserted that the trial court erred in finding this to be a mixed motive case. The board of education argued that no discriminatory motive was behind the decision to nonrenew appellant‘s contract. The court of appeals resolved this assignment of error by holding that “the court below abused its discretion in determining that appellant had committed an unfair labor practice since it should have remanded the case to SERB after it determined that SERB had erred in deeming the complaint‘s factual allegations admitted.”1
The court of appeals ruled that “the judgment of the court below is reversed and remanded for further proceedings, i.e., an ultimate remand to SERB, consistent with this opinion.”
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Lee I. Fisher, Attorney General, and Joseph M. Oser, Assistant Attorney General, for appellee State Employment Relations Board.
Cloppert, Portman, Sauter, Latanick & Foley, Susan Hayest Kozlowski and Mark A. Foley, for appellant.
Means, Bichimer, Burkholder & Baker Co., L.P.A., Matthew J. DeTemple and Robert T. Baker, for appellee Adena Local School District Board of Education.
Alice Robie Resnick, J. For the reasons which follow, we find that the trial court did not abuse its discretion in ruling that substantial evidence in the record supported SERB‘s determination that a ULP occurred. We reverse the judgment of the court of appeals and reinstate the judgment of the trial court upholding SERB‘s order that appellee board of education offer appellant reinstatement and award him back pay.
I
In Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 259-261, 533 N.E.2d 264, 266-267, this court explained that different standards of review are to be applied by a common pleas court and by a court of appeals when reviewing an order of SERB in a ULP case. When a common pleas court reviews a SERB order, the court must determine whether the order is supported by substantial evidence in the record. This standard of review for a common pleas court is supplied by
An appellate court, on the other hand, plays a more limited role than a trial court in reviewing the same SERB order. The role of the appellate court is to determine whether the trial court has abused its discretion. The appellate court must affirm the judgment of the trial court if no abuse of discretion occurred. Id., 40 Ohio St.3d at 260-261, 533 N.E.2d at 267.
The trial court in this case reviewed SERB‘s order and determined that substantial evidence in the record supported SERB‘s conclusion that the board of education committed a ULP. The court of appeals, in reversing the judgment of the trial court, held that the trial court abused its discretion in ruling as it did. We thus examine the decision of the court of appeals, to determine if that court was correct in holding that the trial court abused its discretion.
A
The court of appeals based its decision that the trial court abused its discretion on the trial court‘s failure to remand the cause to SERB upon determining that SERB had ruled improperly that the allegations of the complaint were to be deemed admitted.2 We recognize that the trial court could have remanded the cause to SERB, to allow SERB to consider the facts surrounding the allegations improperly deemed admitted. The initial question we address is whether the trial court abused its discretion in failing to remand the cause to SERB.
The court of appeals held that the trial court had a duty to remand this cause to SERB, and that the failure to remand constituted an abuse of discretion. It appears that the court of appeals believed that when the trial court conducted its own review of the evidence not considered by SERB, the trial court usurped SERB‘s role as the finder of fact in ULP cases. However, even though we may agree that the trial court should have remanded the cause to SERB, it must be remembered that a court of appeals must affirm a trial court decision on a SERB order in a ULP case unless the trial court abused its discretion. “An abuse of discretion ‘“’ *** implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or
We cannot agree that the trial court abused its discretion by not remanding this cause to SERB for further findings of fact. A thorough examination of the record in this case reveals that the board of education encouraged the trial court to conduct its own consideration of the evidence not considered by SERB. The board of education requested that the trial court use evidence not considered by SERB to find that the decision to nonrenew appellant was not retaliatory. Specifically, the board of education urged the trial court “to reject SERB‘s jaundiced ‘in part’ standard of proof and find that the Board of Education has rebutted Kelley‘s prima facie case of discrimination and that SERB‘s Opinion and Order should be reversed.”
In considering the evidence which SERB had refused to consider, the trial court did as the board of education desired. However, the trial court found circumstantial evidence of discriminatory intent in the record, and upheld SERB‘s finding that a ULP had been committed.3 We find it incongruous that the board of education should encourage the trial court to examine the evidence, and then benefit from a ruling by the court of appeals that the trial court abused its discretion when it examined the evidence. We hold that the trial court, in the circumstances of this case, did not abuse its discretion when it did not remand the cause to SERB.
B
Our inquiry does not stop there. We also consider whether the trial court abused its discretion when it found substantial evidence in the record to support the determination that a ULP occurred. It is apparent that the trial court did not abuse its discretion in this regard. The trial court recognized that the good evaluations given to appellant, as well as Principal Grooms‘s recommendation that appellant be given a continuing contract, were substantial circumstantial evidence of a discriminatory motive behind the decision to nonrenew appellant. These factors, considered along with appellant‘s improvement in setting work schedules and adhering to them (a finding we
II
The trial court in this case, after examining the evidence, determined that the board of education‘s decision to nonrenew appellant was motivated both by legitimate and illegitimate reasons. The trial court then applied what was SERB‘s approach at that time in “mixed motive” cases, the “in part” test adopted in In re Gallia, supra. Because the employer‘s action was motivated at least in part by a desire to retaliate for the participation in a protected activity (filing a grievance), the trial court found that a ULP had occurred, and upheld SERB‘s order.
Upon appeal, the appellate court found that the trial court erred in applying the “in part” test, because that test cannot reasonably be reconciled with
We do not accept the conclusions drawn by the court of appeals. We therefore examine the “in part” and “but for” causation tests in light of
The motivation behind an employer‘s decision to take an action regarding an employee is the central question that must be resolved in a ULP case.
A
Between the 1930s and 1980, the NLRB, when evaluating ULP charges, applied the “in part” test. The NLRB construed the National Labor Relations Act (“NLRA“),
In 1980, in Wright Line, Div. of Wright Line, Inc. (1980), 251 N.L.R.B. 1083, enforced (C.A.1, 1981), 662 F.2d 899, certiorari denied (1982), 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848, the NLRB changed the analysis it applied in resolving ULP cases. In Wright Line, the NLRB adopted a causation test commonly called the “but for” test, in an attempt to alleviate dissatisfaction over the “in part” test expressed by several federal courts of appeals. Id., 251 N.L.R.B. at
In Wright Line, 251 N.L.R.B. at 1089, the NLRB set forth the following test to evaluate employer motivation in ULP cases: “First, we shall require that the General Counsel [of the NLRB] make a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer‘s decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.”
The Wright Line test allows the employer to present its alleged legitimate reasons for its actions as an affirmative defense. This causation test is commonly called the “but for” test because it establishes that a ULP has occurred when the evidence shows that “but for” the exercise of protected activity, the employer‘s action (e.g., a discharge) regarding the employee would not have been taken.
The Wright Line test was not uniformly embraced by the federal courts of appeals. See Comment, Transportation Management: The Validation of Wright Line (1984), 2 Hofstra Labor L.J. 185, 193-194. However, in Natl. Labor Relations Bd. v. Transp. Mgt. Corp. (1983), 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667, the United States Supreme Court held that the NLRB‘s Wright Line test was a permissible construction of the NLRA, and was entitled to deference. The court also found that the “in part” test applied before Wright Line “was plainly rational and acceptable.” Transp. Mgt., 462 U.S. at 399, 103 S.Ct. at 2473, 76 L.Ed.2d at 673.
B
As we have said, the ULP provisions of Ohio‘s
Appellant reads
Initially, we cannot agree with the court of appeals that the “in part” test is not a reasonable interpretation of
We also do not agree with the court of appeals that
Contrary to the assertions of the board of education,
Even though we have found the “but for” approach to be inconsistent with
When the “in part” test is properly applied it results in a determination of the actual motive of the employer in taking the action. This approach allows SERB to consider the employee‘s work history, but only as circumstantial evidence of the employer‘s motivation, and not as a separate inquiry characterized as an affirmative defense. Thus, application of the “in part” test in this manner allows SERB, in resolving ULP charges, to focus on the important inquiry--the motivation of the employer. The problems associated with the “but for” test and its burden-shifting, wrongly focused, bifurcated inquiry are avoided.
We realize that recognizing actual motivation to be a component of the “in part” test will not necessarily make SERB‘s task in determining employer motivation an easy one. SERB must still evaluate the evidence presented to determine if antiunion animus actually motivated the employer to take the action against the employee. However, we are confident that this causation analysis will allow SERB to comport more closely with the requirements of
C
In applying the preceding discussion to the facts of this case, we find that the trial court did not err in applying the “in part” test to determine causation. At the time the trial court rendered its judgment, the “in part” test of In re Gallia was the approach applied by SERB to resolve ULP cases. As explained above, that approach was a reasonable interpretation of
III
Conclusion
Based on our discussion in Part I of this opinion, the trial court did not abuse its discretion in finding that appellant‘s nonrenewal was motivated by
Judgment reversed.
A.W. Sweeney, Douglas, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., and Wright, J., concur in part and concur in judgment.
Wright, J., concurring in part and concurring in judgment. While I am able to join Parts I, II(A), II(C), and III of the majority opinion, I cannot join Part II(B) or the syllabus. There is simply no support in
The Public Employees, Collective Bargaining Act, codified in
“It was clearly the intention of the General Assembly to vest SERB with broad authority to administer and enforce
Thus, in reviewing a SERB decision in a ULP case, the courts “must accord due deference to SERB‘s interpretation of
Thus, when SERB construes the Act in a permissible fashion, the courts should not interfere. It is only when the agency makes a decision that is without support under the law that we may impose our construction of the statute. See, e.g., Ohio Historical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 466, 613 N.E.2d 591 (SERB‘s ruling that historical society is a public employer was without support in the Act).
The majority admirably sets forth the terms of the debate over the “in part” and the “but for” tests. In my view, however, its discussion of the law leads inexorably to the conclusion that both tests are permissible under
Prior to 1991, SERB used the “in part” test in mixed motive cases. In In re Gallia-Jackson-Vinton Joint Vocational School Dist. Bd. of Edn. (Nov. 13, 1986), SERB No. 86-044, SERB adopted the “in part” test and expressly declined to follow the “but for” test. On two subsequent occasions SERB expressly declined to abandon the “in part” test. See In re Ohio Dept. of Transp. (Oct. 8, 1987), SERB No. 87-020; State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn., (Dec. 29, 1989), SERB No. 89-034. For many of the reasons enunciated in the majority opinion, I believe that this test is permissible under
In 1991, however (after this case had been decided by SERB, appealed to and decided by the common pleas court, and appealed to the court of appeals), SERB changed its position and expressly adopted the “but for” test of Wright Line, Div. of Wright Line, Inc. (1980), 251 N.L.R.B. 1083. In re Ft. Frye Local School Dist. Bd. of Edn. (July 17, 1991), SERB No. 91-005. It
In Natl. Labor Relations Bd. v. Transp. Mgt. Corp. (1983), 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667, the United States Supreme Court considered whether the National Labor Relations Board‘s use of the Wright Line “but for” test was proper under the National Labor Relations Act. The court deferred to the board; it held that the Wright Line test would not be disturbed because it is not “an impermissible construction of the Act.” Id. at 402, 103 S.Ct. at 2475, 76 L.Ed.2d at 676. This court should now adopt the same position with regard to both the “in part” and the “but for” tests as used by SERB.
The majority, instead, treats its decision as a labor policy choice -- a political choice. And, of course, it is. The majority has made the essentially political decision that “the requirements of
This case was decided by the common pleas court when SERB was using the Gallia-Jackson “in part” test. That court appropriately deferred to the SERB test and found a ULP. The court of appeals, however, erred by substituting its judgment for SERB‘s and mandating the “but for” test. Although it reaches a different conclusion, a majority of this court now commits the same sort of error -- it substitutes its judgment for SERB‘s in order to obtain the political result it desires.
Both precedent and sound judicial policy require that we consistently show deference to SERB‘s handling of ULP cases. We have held that SERB, a “specialized administrative agency” with “considerable expertise in labor-management relations,” is entitled to deference. Lorain City Bd. of Edn., supra, 40 Ohio St.3d at 260, 533 N.E.2d at 267. Yet the majority seems willing to extend this deference to SERB only if SERB reaches the conclusion the majority would have reached.
I express no opinion as to which of the two tests I prefer or believe to “best fulfill” the goals of the Act. I would merely hold that both the “in part” and “but for” tests are permissible under
Moyer, C.J., concurs in the foregoing opinion.