Timeliness Is for the Arbitrator: Ohio Supreme Court Bars Employer Self‑Help on Arbitration Deadlines and Requires SERB to Explain ULP Dismissals

Introduction

In State ex rel. Staple v. State Employment Relations Board, 2025-Ohio-4698, the Supreme Court of Ohio addressed three recurring fault lines in Ohio public-sector labor law: (1) who decides whether a demand for arbitration was timely under a collective-bargaining agreement (CBA); (2) what explanation the State Employment Relations Board (SERB) must provide when it dismisses an unfair-labor-practice (ULP) charge; and (3) how an employee’s waiver of union representation narrows the union’s duty of fair representation (DFR).

The case arose after the City of Ravenna declined to arbitrate a terminated police officer’s grievance, asserting the union’s arbitration demand was late. The officer, Christopher Staple, alleged ULPs against both the City (for refusing to arbitrate) and the Fraternal Order of Police, Ohio Labor Council, Inc. (for allegedly filing late and for causing the City’s ULP). SERB dismissed the charges for lack of probable cause. The Tenth District Court of Appeals granted mandamus, ordering SERB to proceed on both charges. On appeal, the Supreme Court affirmed in part and reversed in part.

The Court’s holdings reshape practice in three concrete ways:

It squarely holds that “procedural arbitrability” disputes like timeliness are for the arbitrator—especially where the CBA incorporates the AAA Labor Arbitration Rules—and employers commit a ULP if they unilaterally refuse to arbitrate such questions.
It requires SERB to provide at least a basic rationale when it dismisses a ULP charge; silence on a charge is an abuse of discretion warranting a limited writ.
It clarifies that an employee’s waiver of union representation can significantly narrow the union’s DFR obligations; where the union merely cooperates as agreed—by filing a notice per the grievant’s counsel’s instructions—it does not act arbitrarily by not second‑guessing counsel’s deadline calculation.

Summary of the Opinion

The Court’s per curiam decision (Kennedy, C.J., Fischer, DeWine, Deters, Hawkins, and Shanahan, JJ., concurring; Brunner, J., concurring in part and dissenting in part) resolves four principal issues:

Final, appealable order: The Court denied Staple’s motion to dismiss the appeal. An unresolved claim for fees under R.C. 2335.39 presupposes a final judgment and thus does not destroy finality; a post-judgment motion for fees under R.C. 2323.51 not pleaded initially likewise does not prevent finality.
Charge against the City (R.C. 4117.11(A)(1)): SERB abused its discretion in dismissing the charge. Because the CBA incorporated the AAA Labor Arbitration Rules, an arbitrator—not the City—had authority to decide whether the arbitration notice was timely. The City’s unilateral refusal to arbitrate provided probable cause to believe a ULP occurred. The Court ordered SERB to issue a complaint and proceed to hearing.
Union charge under R.C. 4117.11(B)(2): SERB abused its discretion by dismissing the charge without providing any reasoning. The Court issued a limited writ requiring SERB to consider the charge and explain its rationale.
Union charge under R.C. 4117.11(B)(6): SERB did not abuse its discretion in dismissing the DFR claim. Staple’s waiver limited the union’s role to cooperation; by filing per Staple’s counsel’s instructions, the union satisfied its limited duty and was not required to independently recalculate deadlines.

Result: Mandamus affirmed in part (City ULP and union B)(2) rationale), reversed in part (union B)(6) DFR), with directions to SERB consistent with these holdings.

Detailed Analysis

I. Procedural Posture and Standards of Review

SERB is charged with investigating ULP complaints and determining whether there is probable cause to believe a violation occurred. See R.C. 4117.12(B). “Probable cause” in this context means reasonable grounds to believe a ULP occurred; it is not a merits determination. Because SERB’s probable-cause dismissals are not directly appealable, mandamus is the vehicle for review. A writ issues only if SERB abuses its discretion—acting unreasonably, arbitrarily, or unconscionably—or commits a legal error. The Supreme Court applies the same abuse-of-discretion review as the appellate court.

II. Who Decides Timeliness? Arbitrator, Not Employer

The central dispute concerned the deadline for the union to submit the grievance to arbitration after the Mayor issued his Step 3 decision. The CBA’s “Grievance Procedure” defined “Days” as “calendar days, excluding Saturdays, Sundays, or holidays” (effectively business days), while the “Arbitration Procedure” opened with “within thirty (30) calendar days,” creating ambiguity about how to count the 30-day deadline.

The City refused to arbitrate after receiving the union’s December 23 notice, declaring it four days late under its calendar-day calculation (from November 20 to December 21, adjusted under R.C. 1.14). Staple argued that under the grievance-definition of “Days,” the deadline was January 5, and, crucially, that an arbitrator—not the City—had to decide.

The Court agreed with Staple on the governance question, not the deadline itself. Two pillars support the holding:

Procedural arbitrability doctrine: Matters like timeliness are classic “procedural arbitrability” questions for the arbitrator unless there is “positive assurance” that the dispute is not arbitrable. Council of Smaller Enterprises v. Gates, McDonald & Co., 1998-Ohio-172, ¶ 22-33.
AAA kompetenz‑kompetenz: The CBA expressly incorporated the AAA Labor Arbitration Rules; Rule 3a states that the arbitrator “shall have the power to rule on his or her own jurisdiction.” That includes deciding whether a demand is timely.

SERB erred by effectively interpreting the CBA to accept the City’s calculation and concluding the notice was late. The legal question at the probable-cause stage was who decides, not how to calculate the deadline. Because the CBA routes jurisdictional and timeliness questions to the arbitrator, the City could not unilaterally refuse arbitration. That refusal supplied at least probable cause to believe the City “interfered with” rights protected by R.C. Chapter 4117, violating R.C. 4117.11(A)(1).

Remedy: The Court directed SERB to vacate its dismissal, enter a probable-cause finding, and proceed to hearing on the City charge. The ultimate timeliness determination remains for the arbitrator.

III. SERB Must Give a Basic Rationale When It Dismisses a ULP Charge

Staple alleged that the union “[c]aused or attempted to cause” the City to commit a ULP, violating R.C. 4117.11(B)(2). SERB’s order did not address that allegation beyond an introductory mention.

While SERB is not required to make full findings of fact at the investigation stage, it must provide enough reasoning to permit judicial review. See State ex rel. Ohio Assn. of Pub. School Emps./AFSCME, AFL-CIO v. SERB, 1992-Ohio-119 (courts cannot assess arbitrariness where SERB summarily dismisses). The Court therefore affirmed a limited writ directing SERB to consider all relevant facts and circumstances bearing on the (B)(2) allegation and to issue a new order explaining its reasoning.

IV. Waiver Narrows, and May Discharge, Union’s DFR Obligations

Staple executed a waiver under R.C. 4117.03(A)(5), substituting his own counsel and releasing the union from “all duties of representation and liabilities arising out of the arbitration hearing,” while reserving that the union would “cooperate in any appropriate manner” under the CBA to secure his right to arbitrate. He then instructed the union to file his counsel’s notice and asserted a January 5 due date; the union filed on December 23.

DFR probable-cause framework, as applied by SERB:

Charging party’s initial burden: show the union acted arbitrarily by failing to take a “basic and required step.” In re OSCEA/AFSCME, Local 11, SERB No. 98‑010, at 3‑58 (July 22, 1998); State ex rel. Fuller v. SERB, 2011-Ohio-1599, ¶ 28 (10th Dist.).
Union’s rebuttal: offer justification or viable excuse for action/inaction.

Here, even assuming that timely filing of a notice is ordinarily a “basic and required step,” the union rebutted by pointing to Staple’s waiver and his counsel’s explicit instructions. The union offered its standard form and questioned counsel’s calculation; counsel insisted on using his own notice and deadline. The union then filed promptly per those instructions, cooperating as agreed.

The Supreme Court held that SERB did not abuse its discretion in dismissing the DFR charge. The waiver limited the union’s role to cooperation; it did not obligate the union to manage the case or to second-guess the grievant’s counsel’s strategy or math. By following counsel’s directives, the union satisfied its limited duty.

The Tenth District’s contrary view—that the union retained an independent duty to verify and meet the “true” deadline—was rejected. Justice Brunner would have affirmed the court of appeals in full, indicating a more expansive view of residual union duties notwithstanding a waiver.

V. Final Appealable Order and Attorney Fees

Staple moved to dismiss the appeal, arguing the judgment was nonfinal because his post-judgment fee request remained pending. The Court denied the motion:

R.C. 2323.51: Staple did not plead a sanctions claim in his complaint; he raised it post-judgment. An issue not before the court when judgment was entered does not preclude finality.
R.C. 2335.39: A prevailing eligible party must move for fees “after” the court enters final judgment. A 2335.39 motion therefore presupposes finality and does not bar it. See, generally, IBEW Local 8 v. Vaughn Industries, L.L.C., 2007-Ohio-6439 (fee claims pleaded in the case can affect finality absent Civ.R. 54(B)—but 2335.39 operates differently).

Precedents Cited and Their Influence

Council of Smaller Enterprises v. Gates, McDonald & Co., 1998-Ohio-172: The Court invoked COSE’s “procedural arbitrability” doctrine: arbitrators decide timeliness and other procedural questions absent “positive assurance” that a dispute is not arbitrable. This laid the doctrinal foundation for holding the City could not unilaterally declare the notice untimely.
AAA Labor Arbitration Rules, Rule 3a: By contract, the parties gave arbitrators authority to rule on their own jurisdiction, reinforcing that the timeliness question belonged to the arbitrator.
State ex rel. Portage Lakes Edn. Assn. v. SERB, 2002-Ohio-2839: The Court used Portage Lakes to define probable cause in SERB practice and to confine review to abuse of discretion, emphasizing that factual conflicts are SERB’s domain—yet legal errors are not within its discretion.
State ex rel. Murray v. SERB, 2018-Ohio-5131; State ex rel. Alben v. SERB, 1996-Ohio-120; SEIU District 925 v. SERB, 1998-Ohio-463: These decisions collectively supplied the mandamus posture and abuse-of-discretion yardstick for reviewing SERB’s probable-cause dismissals.
Johnson v. Abdullah, 2021-Ohio-3304: The Court underscored that adjudicative bodies have no discretion to make legal errors—critical here, where SERB committed legal error by deciding the timeliness issue (instead of who decides it).
State ex rel. Ohio Assn. of Pub. School Emp./AFSCME, AFL-CIO v. SERB, 1992-Ohio-119: Cited to require SERB to provide a basic rationale for dismissing a charge; a summary dismissal that precludes meaningful review is an abuse of discretion.
In re OSCEA/AFSCME, Local 11, SERB No. 98-010 (July 22, 1998); State ex rel. Fuller v. SERB, 2011-Ohio-1599 (10th Dist.): Used to articulate the DFR probable-cause test and the idea of a “basic and required step.” The union’s waiver-based justification overcame Staple’s prima facie showing in this case.
IBEW Local 8 v. Vaughn Industries, L.L.C., 2007-Ohio-6439; R.C. 2505.02, 2505.03; Civ.R. 54(B): Provided the general finality framework; distinguished here because R.C. 2335.39 fee motions presuppose final judgment, and the R.C. 2323.51 request was not pleaded prior to judgment.

Complex Concepts Simplified

Procedural arbitrability: These are “gateway” procedural questions—like timeliness, notice, or steps in a grievance procedure—that determine whether the merits reach an arbitrator. Courts and agencies generally defer these questions to arbitrators, particularly when the contract says the arbitrator decides jurisdiction.
AAA Rule 3a (kompetenz‑kompetenz): A standard arbitration rule under which the arbitrator has power to decide the scope of their own authority, including whether a demand is within time and within the contract’s arbitration clause.
Probable cause in SERB proceedings: Not a merits finding; it asks only whether there are reasonable grounds to believe a ULP occurred. If yes, SERB issues a complaint and holds a hearing.
Mandamus review of SERB: Because SERB’s probable-cause dismissals are not appealable, a party may seek a writ of mandamus. The court asks whether SERB abused its discretion or committed a legal error.
Duty of fair representation (DFR): Unions must represent bargaining-unit employees fairly, typically avoiding arbitrary, discriminatory, or bad-faith conduct. Failing to take “basic and required steps” (e.g., filing a timely arbitration demand) can be arbitrary. But the duty can be narrowed by an employee’s waiver of representation.
Waiver of union representation: Employees may retain private counsel and release the union from representation duties for arbitration. The precise wording matters: here, the union was released from representation at the hearing and related liabilities but agreed to “cooperate” to secure arbitration. That limited cooperation did not require second-guessing counsel’s instructions.
Final, appealable order & attorney fees: Outstanding attorney-fee claims often prevent finality unless certified under Civ.R. 54(B). But fees under R.C. 2335.39 are sought by motion after final judgment; they do not defeat finality. A sanctions motion under R.C. 2323.51 raised only post-judgment likewise does not undermine finality.
Counting “days” under a CBA: Contracts may define “Days” differently across sections. Ambiguity about whether to count business days or calendar days—and what triggers the clock—often presents an arbitrable question reserved for the arbitrator under an AAA-governed CBA.

Practical Impact and Guidance

A. Public Employers

Do not refuse to arbitrate because you believe the demand is late. Under a CBA incorporating AAA rules (or lacking “positive assurance” otherwise), timeliness is for the arbitrator. Unilateral refusal risks a ULP under R.C. 4117.11(A)(1).
Preserve the timeliness argument for the arbitrator. Raise it as a jurisdictional or procedural defense at the arbitration, not as a basis to avoid arbitration altogether.
Delivery mechanics matter. Where a CBA requires “render and deliver” of decisions, establish and document how and when delivery occurred to the union and grievant; arbitrators will scrutinize the trigger date.

B. Unions

Draft waivers carefully. If you agree only to “cooperate,” spell out the scope (e.g., filing a notice on counsel’s instruction), and disclaim responsibility for calculating deadlines if the grievant chooses to direct filings through private counsel.
If not waived, treat the arbitration demand deadline as a “basic and required step.” Timely filing is central to meeting DFR obligations.
Even under a waiver, consider memorializing in writing any advice to private counsel (e.g., questioning a proposed deadline), and promptly file as instructed to demonstrate cooperation.

C. Public Employees and Counsel

Waivers have consequences. By taking control of the case, you may limit your ability to claim a union DFR violation tied to your own strategy or calculations.
When counting days in a CBA, verify definitions across sections. If ambiguous, expect an arbitrator to decide—but do not assume a later, more generous reading will prevail.
If you need the union to file, give clear, prompt instructions and consider asking the union to file immediately to avoid any timeliness controversy.

D. SERB and Administrative Practice

Include a basic rationale in dismissal orders. Silence on a charge (e.g., an alleged violation under R.C. 4117.11(B)(2)) is an abuse of discretion and will trigger a limited writ.
At the investigation stage, focus on legal allocation questions: if a CBA assigns procedural arbitrability to the arbitrator, do not resolve timeliness; ask instead whether an employer’s refusal to arbitrate itself raises probable cause for a ULP.

E. CBA Drafting

State clearly whether the arbitrator decides procedural arbitrability (many CBAs incorporate the AAA rules, which do). This opinion underscores the effect of that choice.
Harmonize time-counting definitions across grievance and arbitration sections. Ambiguity can generate threshold disputes—now firmly destined for arbitration.

F. Litigation Practice: Fees and Finality

Understand that R.C. 2335.39 fee motions come after a final judgment; they will not delay finality for appeal purposes.
If fee exposure under other statutes (e.g., R.C. 2323.51) is intended to affect finality, ensure those claims are properly raised before judgment or obtain Civ.R. 54(B) language.

Case Timeline at a Glance

October 2020: Staple terminated; files grievance.
Nov. 13, 2020: Mayor hears grievance.
Nov. 19/20, 2020: Mayor issues denial; email sent Nov. 20; timeliness clock disputed.
Dec. 21, 2020: Staple’s counsel emails union a notice and instructs filing by Jan. 5.
Dec. 23, 2020: Union files notice to arbitrate.
Jan. 8, 2021: City refuses to arbitrate as untimely.
2021–2022: SERB dismisses ULP charges; court of common pleas rejects motion to compel arbitration; Eleventh District affirms (Staple not a CBA party).
2024: Tenth District grants mandamus on both ULP charges.
Oct. 15, 2025: Supreme Court affirms in part (City ULP; SERB must explain union B)(2) dismissal) and reverses in part (union DFR dismissal stands); denies motion to dismiss for lack of finality.

Conclusion

State ex rel. Staple v. SERB cements a clear rule in Ohio public-sector labor relations: absent “positive assurance” to the contrary—and especially where the CBA incorporates AAA rules—timeliness and other procedural arbitrability questions are for the arbitrator. Employers may not unilaterally declare a demand untimely to avoid arbitration; doing so can constitute a ULP under R.C. 4117.11(A)(1) at least at the probable-cause stage.

The decision also enforces an important administrative-law discipline: SERB must provide a basic rationale when dismissing ULP charges, allowing for meaningful review. Finally, the Court underscores that employee waivers narrowing union representation can significantly limit DFR exposure. Where a union merely cooperates as agreed—filing as directed by the grievant’s counsel—it does not act arbitrarily by declining to second-guess counsel’s strategy or deadline.

Taken together, the opinion promotes channeling threshold disputes to arbitration, clarifies SERB’s obligations at the investigative stage, and provides practical guidance on how waivers reshape union responsibilities. Parties should adjust their practices accordingly: employers should arbitrate first and argue timeliness to the arbitrator; unions should define and document the scope of “cooperation” under waivers; and employees who take control of their cases should do so with care, understanding that responsibility follows control.