State Employment Relations Board v. Miami UniversityState Employment Relations Board v. Miami University
- Reporters:
- , ,
- Before:
- Alice Robie Resnick, Thomas J. Moyer, Douglas, F.E. Sweeney, Pfeifer, A.W. Sweeney, Wright
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Public employees’ collective bargaining -- Ohio public employer commits unfair labor practice in violation of
An Ohio public employer mаy not unilaterally withdraw recognition of and/or refuse to bargain collectively with an incumbent union, despite any good faith doubt the employer may have concerning the union‘s continuing majority status.
On January 15, 1986, following a representation election conducted by appellant State Employment Relations Board (“SERB“), appellant Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO (“AFSCME“) was certified as the exclusive representative of a bargaining unit consisting of non-teaching support and maintenance employees of appellee, Miami University (“Miami“). Thereafter, AFSCME and Miami entered into a collective bargаining agreement effective August 22, 1986 through August 21, 1989. On May 2, 1989, an employee in the bargaining unit filed a petition for decertification election with SERB seeking to decertify AFSCME as the exclusive representative. SERB dismissed the petition for decertification without prejudice and reaffirmed such dismissal upon reconsideration.1 No attempt has been made to refile the petition.
Following SERB‘s dismissal of the petitiоn for decertification, AFSCME requested the commencement of
Beginning June 26, 1989, AFSCME filed three unfair labor practice (“ULP“) charges with SERB alleging that Miami had violated
Miаmi appealed to the Butler County Court of Common Pleas pursuant to
The court of appeals, in a split decision, reversed the judgment of the common pleas court and remanded the case “with instructions to determine if SERB‘s finding that Miami failed to establish a good faith doubt is supported by substantial evidence.” The appellate court found that SERB‘s decision “represents a break with its own past decisions, and *** is fundamentally inconsistent with the statutory frame work [sic] of R.C. [Chapter] 4117.”
The cause is now before this court pursuant to the allowance of motions to certify the record.
Lee Fisher, Attorney General, and Joseph M. Oser, Assistant Attorney General, for appellant SERB.
Ronald H. Janetzke, Chief General Counsel, and Andrew J. Love, for appellant Ohio Council 8.
Thompson, Hine & Flory, William C. Moul and Bonnie I. O‘Neil, for appellee.
Alice Robie Resnick, J.
Under Serb‘s present policy, an Ohio public employer may not unilaterally withdraw recognition of and/or refuse to bargain collectively with a deemed certified union, despite any good faith doubt the employer may have concerning the union‘s continuing majority support among the unit‘s employees. Instеad, an employer may only cease negotiations with a certified union during the pendency of a
Miami contends, and the court of appeals held, that SERB‘s policy, reflected in Marion Cty. Children‘s Services Bd., is fundamentally inconsistent with the statutory framework of
In assessing SERB‘s policy, this court must afford deference to SERB‘s interpretation of
It is also important to note the relationship that federal decisions bear to Ohio public sector labor law. Since ”
With these principles in mind, we now turn our attention to a review of the relevant authority. Under the Ohio Collective Bargaining Act, a public employer is required to bargain collectively with an employee organization certified as
The duty to bargain arises when an employee organization becomes the exclusive representative of a bargaining unit. In order for this to occur, the employee organization must either be certified by SERB pursuant to
The duty to bаrgain with an exclusive representative continues so long as the representative maintains its exclusive status. Once certified, the representative‘s exclusive status is maintained until the representative is displaced in accordance with the procedures set forth in
Prior to the enactment of
Concomitantly, the NLRB wrestled with the effect that the filing of a decertification or rival union petition had on the employer‘s duty to continue negotiations. In Midwest Piping & Supply Co., Inc. (1945), 63 NLRB 1060, the NLRB held that an employer commits a ULP by recognizing and bargaining with a union where a real question concerning representation exists. In William D. Gibson Co. (1954), 110 NLRB 660, the NLRB permitted an employer to continue bargaining with an incumbent union despitе a representation claim by a rival union. In Shea Chemical Corp. (1958), 121 NLRB 1027, 1029, the NLRB overruled Gibson and held that “upon presentation of a rival or conflicting claim which raises a real question concerning representation, an employer may not go so far as to bargain collectively with the incumbent (or any other) union unless and until the question concerning representatiоn has been settled by the Board.” This rule was later applied to real questions of representation raised by the filing of a valid decertification petition in Telautograph Corp. (1972), 199 NLRB 892.
In 1982, the NLRB reversed both Shea Chemical and Telautograph and held that the mere filing of a rival or decertification petition will no longer require, or permit, an employer to withdraw from bargaining with an incumbent union. RCA Del Caribe, Inc. (1982), 262 NLRB 963; Dresser Indus., Inc. (1982), 264 NLRB 1088. The NLRB explained that:
“As the Midwest Piping doctrine hаs been applied over the years in cases involving rivalries between incumbent and outside labor organizations, it has become increasingly evident that the Board‘s efforts to promote employee free choice have been at a price to the stability of collective-bargaining relationships. In particular the Shea Chemical adaptation of Midwest Piping has failed to accord incumbency the advantages which in nonrival situations the Board has encouraged in the interest of industrial stability. The recognition of the special status of an incumbent union indicates a judgment that, having once achieved the mantle of exclusive bargaining representative, a union ought not to be deterred from its representative functions even though its majority status is under challenge.” RCA Del Caribe, Inc., supra, 262 NLRB at 965. This, of course, did not preclude an employer from withdrawing recognition in good faith based on other objective considerations. Id. at 965, fn. 13.
Against this backdrop, SERB first addressed the issue of whether a public employеr in Ohio may decline in good faith to bargain with an incumbent union in In re Cleveland City School Dist. Bd. of Edn. (February 1, 1985), SERB 85-003, 1984-86 SERB Official Rptr. 28. In considering the issue, SERB noted initially that “[t]he undulating course of NLRB doctrine suggests the possibility of alternative persuasions or, at least, a choice.” Id. at 28, fn. 1. SERB went on to establish the policy that an employer may justifiably refuse to bargain with an incumbent union where a decertification or rival union petition is filed and a stay is granted by SERB. Id. at syllabus; In re North Canton City Schools (August 2, 1985), SERB 85-037, 1984-86 SERB Official Rptr. 146; In re West Carrollton City School Dist. (June 26, 1986), SERB 86-026, 1984-86 SERB Official Rptr. 294.
Later, SERB clarified its policy in Marion Cty. Children‘s Services Bd., supra, SERB 92-017. In that case, as in this case, the employer refused to bargain with AFSCME based on its assertion of good faith doubt following the dismissal of a decertification petition. SERB found that the employer committed a ULP by refusing to resume negotiations with AFSCME after thе decertification petition which had been pending was dismissed. SERB did “not agree *** that good faith doubt may be established apart from a pending petition.” Id. at 3-57. Instead, after acknowledging its departure from NLRB precedent, SERB offered the following explanation:
“Chapter 4117 neither provides for voluntary recognition of bargaining representatives outside the certification process nor contemplates voluntary withdrawal of recognition. Even when an employer is willing to voluntarily recognize a bargaining agent, this agent must be certified by SERB. (
O.R.C. {4117.05(A)(2) ). Clearly, under Ohio law, certification is the benchmark which triggers a bargaining obligation.“Only SERB has the power to certify an employee organization as the exclusive bargaining agent, and only SERB can take away such a certification. The duty to bargain in Ohio Revised Code {4117.08(A) exists as long as a certified or deemed certified exclusive bargaining agent exists and may
temporarily be stayed only by SERB action. “Accordingly, we do not believe the Ohio statute contemplates allowing an employer to dеcide unilaterally to terminate a bargaining relationship conferred by certification.
“There is no statutory basis for such unilateral action, and moreover, such action flies in the face of any good labor policy.
“Further, a review of private sector law in the area of good faith doubt convinces us that allowing еmployers to suspend bargaining obligations on this basis undermines labor stability and proliferates litigation to an extent not warranted by any benefits it affords. *** Allowing employers to suspend bargaining obligations based on good faith doubt creates a conflict between the termination of the collective bargaining process by the employer on one hand, and the statutory duty to bargain with the certified bargaining representative on the other hand. Such a conflict has a resolution in the private sector where the employer may petition the NLRB for a Board-conducted election under Section 9(c)(1)(B) of the NLRA (an RM election). However, this is not the case in thе public sector. Chapter 4117 does not contemplate an employer-initiated election where no petition is pending before the Board. Thus, in the public sector, allowing an employer to act on its ‘good faith doubt’ without Board action leads to an irresolvable conflict, which does not encourage good and sensible public policy. ***” Id. at 3-57 to 3-58.
In reviewing SERB‘s policy, we note that the absence of any provision relative to the “good faith doubt” doctrine in
Moreover,
Accordingly, a public employer in Ohio commits a ULP in violation of
In light of the foregoing, the judgment of the court of appeals is reversed, and the judgment of the trial court is reinstated.
Judgment reversed.
Moyer, C.J., Douglаs, F.E. Sweeney and Pfeifer, JJ., concur.
A.W. Sweeney and Wright, JJ., concur in judgment only.