State ex rel. Ohio Department of Mental Health v. Nadel

786 N.E.2d 49, 98 Ohio St. 3d 405
CourtOhio Supreme Court
DecidedApril 16, 2003
DocketNo. 2002-1770
StatusPublished
Cited by34 cases

This text of 786 N.E.2d 49 (State ex rel. Ohio Department of Mental Health v. Nadel) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Ohio Department of Mental Health v. Nadel, 786 N.E.2d 49, 98 Ohio St. 3d 405 (Ohio 2003).

Opinion

Per Curiam.

{¶ 1} Stewart M. Harris Jr., M.D., is a psychiatrist who was employed by the Pauline Warfield Lewis Center, an institution located in Cincinnati, Ohio, and operated by appellee Ohio Department of Mental Health (“ODMH”). Dr. Harris was a member of a collective-bargaining unit represented by District 1199, the Health Care and Social Service Union, Service Employees International Union, AFL-CIO. Effective December 29, 1998, the center terminated Dr. Harris’s employment after several female coworkers made allegations of sexual harassment against him.

{¶ 2} Under the collective-bargaining agreement between the state of Ohio and the union, Dr. Harris filed a grievance challenging his termination, and the matter was ultimately submitted to arbitration. On July 30, 1999, following an evidentiary hearing, the arbitrator denied Dr. Harris’s grievance. The arbitrator concluded that Dr. Harris was guilty of sexual harassment and insubordination.

{¶ 3} In August 1999, Dr. Harris filed an unfair-labor-practice charge against the union with the State Employment Relations Board (“SERB”). Dr. Harris contended that the union had failed to fairly and adequately represent him at the arbitration hearing and had thereby violated R.C. 4117.11(B)(1) and (6). More specifically, Dr. Harris claimed that the union attorney (1) removed several of Dr. Harris’s witnesses from the list of those who would testify, (2) did not cross-examine certain key state witnesses and would not permit Dr. Harris to testify in his own behalf, (3) did not prepare Dr. Harris’s witnesses for the hearing and did not review the written statements of either his witnesses or the state’s -witnesses, and (4) refused to agree to the arbitrator’s offer to extend the hearing by one day to hear all of Dr. Harris’s witnesses because the attorney was concerned about starting her vacation on time. The union also refused to hire his personal attorney at union expense.

{¶ 4} In October 1999, SERB dismissed Dr. Harris’s unfair-labor-practice charge. In February 2000, SERB denied Dr. Harris’s motion for reconsideration.

{¶ 5} Dr. Harris did not file a complaint for a writ of mandamus to challenge SERB’S dismissal of his unfair-labor-practice charge. See State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 35, quoting State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 173, 689 N.E.2d 962, syllabus (“ ‘An action in mandamus is the appropriate remedy to [407]*407obtain judicial review of orders by the State Employment Relations Board dismissing unfair labor practice charges for lack of probable cause’ ”). Instead, in October 1999, Dr. Harris filed an application in the Hamilton County Court of Common Pleas to vacate the arbitration award pursuant to R.C. 2711.10. Dr. Harris alleged that the arbitrator “exceeded the scope of his powers and so imperfectly executed his powers that a mutual, final, indefinite [sic] award upon the subject matter submitted was not made,” “failed to properly consider evidence pertinent and material to the controversy,” and ignored testimony and written statements.

{¶ 6} After ODMH moved to dismiss Dr. Harris’s application, Dr. Harris moved to amend his application to allege that the arbitration award had been procured by fraud and undue means, including the union’s unfair representation, and that the union had breached its duty of fair representation. In the amended application, Dr. Harris claimed that the union failed to thoroughly investigate, prepare, and present his claim at arbitration by, inter alia, (1) refusing to request an additional hearing day because of the vacation plans of the union attorney, (2) failing to permit Dr. Harris to testify, (8) refusing to permit certain witnesses to testify, (4) failing to prepare witnesses, and (5) failing to cross-examine several of the center’s witnesses.

{¶ 7} In his response to ODMH’s dismissal motion, Dr. Harris noted that in his application to vacate the arbitration award, he was “questioning the arbitrator’s failure (because of unfair representation of the Union) to hear evidence that was pertinent, and material to the controversy.” In a subsequent memorandum, Dr. Harris again emphasized that he was attacking the arbitration award because of the alleged unfair representation provided by his union.

{¶ 8} In June 2000, appellant Hamilton County Court of Common Pleas Judge Norbert A. Nadel denied ODMH’s dismissal motion. Judge Nadel determined that Dr. Harris had standing to vacate the arbitration award because he had alleged that the union breached its duty of fair representation.

{¶ 9} ODMH then moved for summary judgment. In his response, Dr. Harris reiterated that “much of the impropriety at [the arbitration] hearing was caused by the Union’s unfair representation” and that his “theory is that the unfair representation so tainted the grievance and arbitration procedure that a separate lawsuit against the employer in court is permitted.” In another response, Dr. Harris again emphasized that the union “breached its obligation to represent him fairly in the proceedings against him.”

{¶ 10} In February 2002, appellant Richard A. Bernat, a magistrate for the common pleas court, denied ODMH’s motion for summary judgment. In March 2002, Judge Nadel adopted the magistrate’s decision.

{¶ 11} In April 2002, appellees, ODMH and its director, filed a complaint in the Court of Appeals for Hamilton County for a writ of prohibition to prevent [408]*408Judge Nadel and Magistrate Bernat from proceeding in the underlying case. Appellees also named Dr. Harris as a respondent. Judge Nadel and Magistrate Bernat moved to dismiss and, upon court order deferring consideration of their motion, filed an answer. Dr. Harris filed an answer in which he specified that because his amended application to vacate the arbitration award “sounds in unfair representation, the [common pleas] court is empowered to hear his claims.” (Emphasis added.)

{¶ 12} In August 2002, the court of appeals denied the motion to dismiss and granted appellees a writ of prohibition to prevent Judge Nadel and Magistrate Bernat from exercising further jurisdiction over Dr. Harris’s application to vacate the arbitration award. In its opinion, the court of appeals noted that Dr. Harris had “conceded at oral argument that his claims concerning the arbitrator’s ‘misconduct’ are premised on the union’s failure to properly represent him at the arbitration hearing.”

{¶ 13} This cause is now before the court upon Judge Nadel and Magistrate Bernat’s appeal as of right.1

Laches

{¶ 14} Judge Nadel and Magistrate Bernat assert that laches warrants denial of the writ because ODMH and its director delayed almost two and a half years before commencing their action for a writ of prohibition to prevent the judge and the magistrate from exercising jurisdiction over Dr. Harris’s application to vacate the arbitration award. Appellants rely on State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7-12, in support of their assertion.

{¶ 15} Appellants’ contention lacks merit. Unlike Fuller, this is not an election case.

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Cite This Page — Counsel Stack

Bluebook (online)
786 N.E.2d 49, 98 Ohio St. 3d 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ohio-department-of-mental-health-v-nadel-ohio-2003.