
    New Miami Local School District Board of Education, Appellant, v. State Employment Relations Board, Appellee.
    (No. CV86-10-1493
    Decided January 25, 1989.)
    Court of Common Pleas of Butler County.
    
      Taft, Stettinius & Hollister and Martin McHenry, for appellant.
    
      Anthony J. Celebrezze, Jr., attorney general, and Robert E. Ashton, for appellee.
   George H. Elliott, J.

The collective bargaining contract between the appellant, New Miami Local School District Board of Education (“New Miami”), and the Ohio Association of Public School Employees (“OAPSE”) expired according to its terms on December 31, 1984. On January 2, 1985, a decertification petition signed by 61.5 percent of the members of the bargaining unit was filed with the ap-pellee, the State Employment Relations Board (“SERB”). It is not disputed that at that time New Miami had a bona fide doubt, based on objective considerations, that OAPSE represented a majority of the employees in the bargaining unit.

During the final months of the contract, New Miami had been negotiating a new contract with OAPSE. On January 2, 1985, New Miami discontinued negotiations and stopped deducting dues for OAPSE. New Miami withdrew recognition of OAPSE, which filed an unfair labor practice charge with SERB.

SERB issued a complaint against New Miami for withdrawing recognition of OAPSE, terminating deduction of OAPSE’s dues from its employees’ wages, and, by later amendment, refusing to bargain. These charges were said to constitute unfair labor practices. OAPSE was permitted to intervene in the administrative proceedings.

On October 8, 1985, a SERB hearing officer found that the decertification petition was valid and that the employees-petitioners had standing to file it. On November 15, 1985, SERB rejected that finding and dismissed the decertification petition, holding that the petitioners lacked standing.

On July 30, 1985, another SERB hearing officer, after hearing, recommended that SERB dismiss the unfair labor practice charges and the complaint. He found as fact that the employees of the bargaining unit had told the superintendent of schools of their dissatisfaction with OAPSE in the fall of 1984; that the superintendent had heard of a decertification petition being circulated; that the superintendent bargained with OAPSE representatives until January 2, 1985, when he received a copy of the decer-tification petition; that sixteen of the twenty-six employees in the bargaining unit had signed the petition, and that the superintendent verified through New Miami’s attorney that the petition had been filed before OAPSE’s recognition was withdrawn. The hearing officer further found that New Miami had deducted OAPSE’s dues pursuant to contract during its term, but ceased thereafter. He found that New Miami had “a reasonable good faith belief that OAPSE no longer exercised majority support among the bargaining unit members.” On September 26, 1986, SERB accepted the hearing officer’s factual findings, but rejected his recommendation. SERB found New Miami in violation of R.C. 4117.11(A)(1) and (5), and ordered New Miami to resume dues deductions and contract negotiations with OAPSE. In re New Miami Local School Dist. Bd. of Edn. (1986), SERB 86-040.

New Miami has appealed SERB’S order to this court. New Miami claims that SERB erred (1) in concluding that New Miami unlawfully ceased dues deductions after the expiration of the collective bargaining contract, and (2) in concluding that New Miami unlawfully refused to bargain with OAPSE, notwithstanding its bona fide doubt, based on objective considerations, that OAPSE was supported by a majority of the employees in the bargaining unit.

SERB specifically accepted its hearing officer’s finding that New Miami had a reasonable, good faith belief that OAPSE no longer represented a majority of the bargaining unit. SERB has held that such a bona fide belief justifies an employer in discontinuing bargaining with an incumbent organization until the representation issue is resolved. “* * * The employer, harboring a good faith doubt of the incumbent’s majority status, could not have negotiated * * * without risking an unfair labor practice. * * *” In re West Carrollton City School Dist. (1986), SERB 86-026, at 296; In re Cleveland City School Dist. Bd. of Edn. (1985), SERB 85-003.

As previously noted, SERB does not dispute New Miami’s good faith in doubting OAPSE’s representation. However, SERB claims that such good faith doubt is irrelevant and that Cleveland Bd. of Edn. and West Carrollton City School Dist. are inapplicable, as the decertification petition in this case was invalid. This argument is not persuasive and appears to be based on hindsight.

The existence vel non of a reasonable, good faith doubt as to OAPSE’s status must be determined as’ of the time New Miami withdrew recognition, not ten months later when SERB overruled its hearing officer and held that the petitioners for decer-tification lacked standing to file the petition. In fact, with respect to bona fide doubt and discontinuance of negotiations, it is the invalidity of the decertification petition that is irrelevant.

At the time recognition was withdrawn and negotiations terminated, New Miami had a reasonable, good faith doubt, based on objective considerations, that OAPSE did not represent a majority of the members of the bargaining unit. The filing of the decer-tification petition, which was signed by more than a majority of the bargaining unit, and which contained a statement that “the currently recognized or certified exclusive representative no longer is the representative of a majority of the employees in the unit,” corroborated previous objective indications that OAPSE did not represent a majority of the members of the unit. As the hearing officer correctly observed in his proposed order:

“The central issue, in the instant matter, is whether or not the Decer-tification Petition, exhibiting the endorsement of more than sixty percent (60%) of the bargaining unit, supports the employer’s good faith doubt that the employee organization maintain[s] majority support. The lack of standing of the individual employee[s] to file the Decertification Petition does not destroy the message, giving rise to serious questions of majority support, contained within the petition.”

The right of a employer to withdraw recognition from an employee organization where a bona fide doubt of the organization’s continued majority status exists, founded in good faith and based upon objective considerations and free from employer unfair labor practices, has been frequently recognized in federal cases arising under the National Labor Relations Act, the federal counterpart to Ohio’s collective bargaining laws. NLRB v. Dayton Motels, Inc. (C. A. 6, 1973), 474 F. 2d 328; Orion Corp. v. NLRB (C.A. 7, 1975), 515 F. 2d 81; Indiana Cabinet Co. (1985), 275 NLRB No. 169, 120 LRRM 10009.

SERB contends that the so-called “temporary language” of Section 4(A) of Am. Sub. S. B. No. 133 of the 115th Ohio General Assembly obligated New Miami to bargain with OAPSE. That section provides:

“Exclusive recognition through a written contract, agreement, or memorandum of understanding by a public employer to an employee organization, whether specifically stated or through tradition, custom, practice, election, or negotiation [that] the employee organization has been the only employee organization representing all employees in the unit is protected subject to the time restriction in division (B) of section 4117.05 of the Revised Code. Notwithstanding any other provision of this act, an employee organization recognized as the exclusive representative shall be deemed certified until challenged by another employee organization under the provisions of this act and the State Employment Relations Board has certified an exclusive representative.” (140 Ohio Laws, Part I, 336, 367.)

This court perceives no unconditional bargaining requirement in Section 4(A). It only provides that certain employee organizations “shall be deemed certified.” Nothing in this legislation requires a public employer to “bargain” with an organization merely because it is. “deemed certified,” especially after expiration of its contract. Section 4(A) was intended to protect collective bargaining arrangements in effect at the time the Public Employees’ Collective Bargaining Act became effective. It does not evince any legislative intent to require an employer to bargain with an incumbent employee organization when the employer has a reasonable bona fide doubt of the organization’s majority status.

We are aware that the court is constrained to afford “due deference” to SERB’S decision. Its factual findings are conclusive. However, the court is not a “rubber stamp” for SERB’S conclusions or interpretations of law. While SERB’S interpretations of the laws which it has the responsibility to enforce are also entitled to deference, SERB’S legal interpretations must be set aside where they conflict with applicable law or are unreasonable or arbitrary, improperly construe the law, or are fundamentally inconsistent with the structure of the law.

SERB’S conclusion that New Miami continued to be obligated to bargain with OAPSE notwithstanding its bona fide, objectively founded doubt of continued majority status cannot be justified under Section 4(A) and is inconsistent with SERB’S previous rulings in In re Cleveland City School Dist. Bd. of Edn., supra, and In re West Carrollton City School Dist., supra. To require New Miami to continue recognition of OAPSE and to continue negotiations with that organization under the circumstances of this case is unreasonable and contrary to the neutral-employer stance previously approved by SERB as the appropriate employer position under such circumstances. In re Cleveland City School Dist. Bd. of Edn. and In re West Carrollton City School Dist., supra.

In R.C. 4117.03(A)(1), the General Assembly specifically recognized that “[pjublic employees have the right to * * * participate in, or refrain from * * * participating in, * * * any employee organization * * *.” New Miami’s employees have attempted to exercise their right to refrain from participation with OAPSE by informing their employer that they do not desire collective bargaining representation by OAPSE and by circulating and presenting to their employer and to SERB a decertification petition signed by more than sixty percent of the bargaining unit. SERB’s order thwarts the employees’ efforts to exercise their right to refrain from participation in employer organizations.

The court finds that New Miami was justified in discontinuing bargaining with the incumbent employee organization, OAPSE, pending resolution of the representation issue. New Miami did not commit an unfair labor practice in withdrawing recognition of OAPSE and failing to bargain after submission of the decertification petition.

New Miami also claims that SERB erred in finding that New Miami unlawfully ceased deducting OAPSE’s dues after the expiration of the collective bargaining contract on December 31, 1984. This issue has been resolved by the Twelfth District Court of Appeals in Ohio Assn. of Pub. School Emp. v. New Miami Local Bd. of Edn. (1986), 31 Ohio App. 3d 163, 166, 31 OBR 328, 331-332, 509 N.E. 2d 973, 977. In accord with that decision, this court finds that New Miami had no obligation to continue dues or “fair share” deductions after its collective bargaining contract with OAPSE expired.

The two assignments of error presented in this appeal are well-taken.

The order of the State Employment Relations Board dated September 26, 1986, is reversed and vacated.

The cross-petition of the State Employment Relations Board for enforcement is dismissed.

Judgment accordingly.  