At the end of last month, the Ohio Supreme Court affirmed SERB’s
dismissal of unfair labor practice charges filed against the City of Columbus
on the grounds that they were untimely. State
ex rel. Murray v. State Emp. Relations Bd.,
Slip Opinion No. 2018-Ohio-5131.
A unanimous court concluded that the plaintiff should have realized by
the time of filing his federal lawsuit that he had grounds to file an unfair
labor practice charge over the more than two-year delay in scheduling an
arbitration hearing on his termination and rejected his argument that he had
filed his lawsuit only to preserve the federal two-year limitations period and
had been lead to believe that his union and the city were still discussing
scheduling his arbitration. Accordingly,
SERB did not abuse its discretion in dismissing as untimely the ULPs filed more
than 120 days after the lawsuit had been initiated. A divided Court affirmed the dismissal of two
later ULPs filed within 90 days of when a settlement agreement between the city
and union was signed and provided to the plaintiff claiming to have resolved
his grievance 14 months earlier. The
city and union had told the federal court in June 2011 that the grievance had
been resolved in July 2010, but did not sign or provide the agreement until
September 2011. The majority found that
SERB did not abuse its discretion in finding that the plaintiff should have
filed within 90 days of June 23 when he learned about the secret resolution.
According to the Court’s opinion, the plaintiff had been
fired from the police department on September 4, 2008 and filed a timely
grievance. The union sought arbitration
on September 10 and then the matter sat, as they often do, for almost two
years. A year and 360 days after his termination (presumably to beat the
limitations period), the plaintiff filed suit on September 4 alleging that he had been denied due process by his
termination and delayed arbitration. An
arbitration hearing was then scheduled, according to the plaintiff, and
cancelled. More than 120 days after he
filed his federal lawsuit, on January 18, 2011, the plaintiff filed two unfair
labor practice charges with SERB against the city and the union, alleging that
they collaborated to deny him an arbitration hearing. However, in June 2011, the city and the union
told the federal court that they had settled the plaintiff’s grievance almost a
year earlier in July 2010 and sent
him a copy of the settlement in September
2011 that was not even signed until September 29, 2011. The plaintiff filed two more ULPs against the
city and the union accusing them of falsifying evidence to deprive him of an
arbitration hearing. SERB dismissed all
of the plaintiff’s ULPs on the grounds that they were filed more after the 90
day limitations period had run.
SERB may not hold hearings on ULPs that are filed more than
90 days after the challenge practice occurred. “The ninety-day time period does
not commence until the charging party knew or should have known of the conduct
which constituted the improper conduct and actual damage ensued.” Timeliness determinations are not reviewable
on direct appeal, but a mandamus will issue if SERB abused its discretion. In this case, while the plaintiff contended
that negotiations over the scheduling of his arbitration hearing continued
until December 2010, the Court concluded that he should have realized that he
had grounds to file an ULP by the time he filed his federal lawsuit –
challenging his termination and the delay in scheduling the arbitration – on September
3. Because he did not file his initial
ULPs until more than 90 days after he initiated his federal lawsuit, his ULPs
were untimely. His ULPs alleging falsification
of evidence filed in December 2011 were found to be untimely because they were
filed more than 90 days after his attorney had been notified in federal court
in June 2011 that the union and city had resolved his grievance among
themselves in July 2010, even though they did not ultimately provide him with a
copy of the settlement until September 29, 2011.
Dissenting, Justice O’Connor disagreed that the limitations
period could have run on the falsification ULPs when the falsified evidence was
not even created or provided to the plaintiff until less than 90 days before he
filed those ULPs. He likely would have
been unable to prove his case until he received a copy of the supposed
agreement. She believed that SERB abused
its discretion by speculating when the ULP actually occurred.
NOTICE: This summary is designed merely to inform and alert you of
recent legal developments. It does not constitute legal advice and does not apply
to any particular situation because different facts could lead to different
results. Information here can be changed or amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
