As an experienced Ohio labor union attorney, one of the critical areas of practice involves navigating disputes that arise under collective bargaining agreements. A cornerstone of most CBAs is the establishment of a grievance and arbitration procedure designed to resolve these disagreements. However, a frequent question that arises is: when does the State Employment Relations Board (SERB) defer to these contractual mechanisms, and when will it assert its own jurisdiction over alleged unfair labor practices (ULPs) that might also have a contractual dimension? This blog post aims to provide clarity on this crucial aspect of Ohio public sector labor law.

The Underlying Principle: Respecting the Bargained Agreement

At its core, SERB's potential deferral to a collective bargaining agreement's grievance and arbitration process is rooted in the principle that parties who have voluntarily negotiated and agreed upon a dispute resolution mechanism within their contract should generally be allowed to utilize that mechanism. This is particularly true when the CBA includes a grievance procedure culminating in final and binding arbitration. SERB recognizes arbitration as a vital instrument for the definitive resolution of contractual disagreements, ensuring the integrity and enforcement of the rights and obligations the parties themselves have established.

Factors Favoring SERB Deferral

Several factors weigh in favor of SERB deferring to the contractual grievance and arbitration process:

Existence of a Binding Arbitration Clause: The presence of a clause providing for final and binding arbitration is a significant indicator that the parties intended contractual disputes to be resolved through this process. SERB often views disputes that are primarily about the interpretation or application of the CBA as particularly suitable for resolution via arbitration.
Primary Focus on Contract Interpretation: When the essence of the dispute revolves around the meaning or application of specific language within the collective bargaining agreement, rather than a direct violation of fundamental statutory rights under Ohio Revised Code (ORC) Chapter 4117, SERB is more likely to defer.
Fairness and Adequacy of the Grievance Procedure: While not always explicitly stated as a strict prerequisite, SERB may consider the perceived fairness and adequacy of the grievance procedure in the CBA. A well-defined and impartial process lends more weight to the argument for deferral.
Mutually Agreed Upon Dispute Settlement (MADS) Procedures: Where the parties have negotiated a Mutually Agreed Upon Dispute Settlement (MADS) procedure that includes final and binding resolution by a neutral third party (as is mandatory for strike-prohibited units) or even provides for third-party final and binding arbitration in strike-permitted units, SERB is likely to respect this chosen alternative to the statutory dispute settlement procedure. These MADS procedures replace the statutory procedures under ORC § 4117.14.

Situations Where SERB is Less Likely to Defer (Direct Intervention)

Despite the general inclination to respect contractual dispute resolution, SERB is considerably less likely to defer in several key circumstances, often asserting its jurisdiction directly to address alleged unfair labor practices:

Alleged Direct Violations of Fundamental Statutory Rights: When the ULP charge alleges a direct violation of rights guaranteed under ORC Chapter 4117 that extend beyond mere contract interpretation, SERB is more inclined to intervene. For instance, allegations of interference, restraint, or coercion of employees in the exercise of their rights under ORC § 4117.03 are likely to be investigated directly. This includes the right to form, join, or assist labor organizations, to bargain collectively, and to engage in concerted activities.
Retaliation for Protected Union Activity: If an employer's action is perceived as specifically retaliating against an employee for engaging in protected union activity (such as filing a grievance itself), SERB is more likely to intervene directly to protect these fundamental rights.
Allegations of Employer Bad Faith or Interference with the Grievance Process: Evidence suggesting that the employer has acted in bad faith during the grievance process or has interfered with the union's ability to effectively represent its members in pursuing grievances would make SERB less likely to defer.
Conflicts of Interest: If a conflict of interest exists that could prevent a fair and impartial resolution through the contractual grievance process, SERB might be hesitant to defer.
Refusal to Bargain in Good Faith: Allegations of a refusal to bargain in good faith over a mandatory subject of bargaining under ORC § 4117.08, even if the subject matter is touched upon in the CBA, may lead SERB to address the ULP directly, especially if the employer's actions indicate an intent to circumvent the union. This is because the duty to bargain is a statutory obligation that SERB is tasked with enforcing.
Pattern or Practice of Unfair Labor Practices: If the alleged ULP is indicative of a broader pattern or practice of violating labor law, SERB is more likely to intervene to ensure compliance with ORC Chapter 4117.
Employer Failure to Process Grievances or Proceed to Arbitration: Ironically, an employer establishing a pattern or practice of repeatedly failing to timely process grievances or refusing to proceed to arbitration, as required by the CBA, can itself be considered an unfair labor practice under ORC § 4117.11(A)(6), which SERB would address directly.
Issues Not Covered by the Collective Bargaining Agreement: If the ULP charge involves an issue that is not addressed or clearly covered by the collective bargaining agreement, leaving no contractual mechanism for resolution, SERB would likely take jurisdiction.
Unilateral Changes to Terms and Conditions of Employment: SERB may directly address unilateral changes made by an employer to mandatory subjects of bargaining that are not permitted by the existing CBA. While a grievance might address a breach of contract, the underlying unilateral change could constitute a refusal to bargain.

The Role of SERB Opinions and Case Law

SERB's approach to deferral is further illuminated by its published opinions. For instance, cases involving alleged interference with the formation of an employee organization or unlawful direct dealing with employees regarding bargaining [In re Vandalia-Butler City School Dist Bd of Ed, referenced in 2] suggest SERB's willingness to intervene to protect fundamental organizational and representational rights, even if a CBA exists.

Furthermore, SERB has emphasized its mission to promote orderly and constructive relationships between public employers and employees under ORC § 4117.22. This mission guides its decisions on whether to defer, balancing the respect for negotiated agreements with the need to safeguard statutory rights and ensure fair labor practices.

Important Considerations for Labor Union Attorneys

For practitioners in Ohio labor law, understanding SERB's deferral policy is crucial for advising unions on the appropriate forum for resolving disputes. When faced with a situation that could potentially be both a contract violation and an unfair labor practice, a careful analysis of the specific facts and the nature of the alleged violation is necessary.

Assess the Primary Nature of the Dispute: Is the core of the issue a matter of interpreting the CBA, or does it fundamentally involve a violation of statutory rights?
Evaluate the Employer's Conduct: Is there evidence of bad faith, retaliation, or an attempt to undermine the union or employee rights?
Consider the Adequacy of the Grievance Procedure: While SERB may defer to a binding arbitration clause, significant flaws or employer obstruction of the process could influence SERB's decision.
Recognize Non-Deferrable ULPs: Certain ULPs, such as a refusal to bargain over a mandatory subject or interference with organizational rights, are more likely to be addressed directly by SERB.

Conclusion

While SERB generally encourages and respects the use of collectively bargained grievance and arbitration procedures for resolving contractual disputes, its overriding responsibility to enforce Ohio's Public Employee Collective Bargaining Act means it will not hesitate to assert its jurisdiction when fundamental statutory rights are at stake or when the integrity of the collective bargaining process is threatened. As experienced labor union attorneys, a nuanced understanding of these principles is essential for effectively advocating for our clients and ensuring the protections afforded by Ohio law are fully realized.

Ohio Union Labor Lawyers