[Cite as State Emp. Relations Bd. v. Brook Park, 2012-Ohio-5716.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98524
STATE EMPLOYMENT RELATIONS BOARD
PLAINTIFF-APPELLEE
vs.
CITY OF BROOKPARK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-766430
BEFORE: Sweeney, P.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEYS FOR APPELLANT
Gary C. Johnson
William F. Schmitz
Eric Allain
Gary C. Johnson & Associates
635 W. Lakeside Avenue
Suite 600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Lori J. Weisman
Assistant Attorney General
Labor Relations Section
615 W. Superior Avenue, 11th Floor
Cleveland, Ohio 44113
Thomas M. Hanculak
Daniel A. Powell
Diemert & Associates Co., L.P.A.
1360 S.O.M. Center Road
Cleveland, Ohio 44124
JAMES J. SWEENEY, P.J.:
{¶1} The city of Brook Park (“City”) appeals from the trial court’s
judgment that affirmed the State Employment Relations Board’s (“SERB”)
order that found the City had violated R.C. 4117.11(A)(1) and (5) by
unilaterally implementing a collective bargaining agreement (“CBA”) prior to
exhausting the statutory dispute settlement procedures and reaching
ultimate impasse. For the reasons that follow, we affirm.
{¶2} An appellate court’s role in an appeal that challenges a SERB
order is limited to determining whether the trial court abused its discretion in
rendering its decision on the same order. Lorain City Bd. of Edn. v. State
Emp. Relations Bd., 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988).
“The appellate court must affirm the judgment of the trial court if no abuse of
discretion occurred.” Id. Absent an abuse of discretion with regard to any
particular factual finding, we must defer to the facts as established by the
record.
{¶3} The record contains the following findings of fact, which include
stipulations of the parties and the Administrative Law Judge’s (“ALJ”)
findings that were adopted by SERB and affirmed by the trial court:
1. The City is a “public employer” as defined by §4117.01(B). At all
times relevant, Mark J. Elliot was the City’s Mayor, Neal Jamison was the
City’s Law Director. Mayor Elliot and Mr. Jamison acted as agents or
representatives of the City.
2. [The Brook Park Fire Fighters’ Association] Local 1141 is an
“employee organization” as defined by §4117.01(D) and is the exclusive
representative for the bargaining unit of the City’s fire fighters at the rank of
Lieutenant or below.
3. The City and Local 1141 were parties to a collective bargaining
agreement (“2008-09 CBA”) effective from January 1, 2008 through December
31, 2009.
4. Article XXIII of the Agreement has a “Duration Clause” which
provided, in relevant part, as follows:
This Agreement * * * shall remain in full force and effect until
December 31, 2009. If either party desires to make any change
in the Agreement for a period subsequent to December 31, 2009,
notice of such a desire shall be given pursuant to this Article. If
no notice seeking modification is given, then the Agreement shall
remain in effect for another year, although notice may be given in
any subsequent year prior to November 1, and the procedure
stipulated herein shall then take effect.
5. Since the inception of Ohio’s Collective Bargaining Act, Local 1141
and the City have had the same “Duration Clause” in Article XXIII of their
CBA. And, pursuant to that clause, the Union has always provided a Notice
to Negotiate in writing.
6. On October 28, 2009, Gary Johnson, the bargaining agent for the
City, telephoned James Astorino, the bargaining agent for Local 1141, and
left the following message:
Jim, Gary Johnson, [telephone number], calling you about two
thriving metropolises: Parma and Brook Park. We served notice
to negotiate on the guys in Parma a month ago and haven’t heard
a thing, they want to get started negotiating. If you guys don’t
want to do anything, then I’m supposed to file for fact-finding and
get a list. I prefer not to do that, but time is of the essence.
Brook Park not quite of such time essence but the Mayor would
like to get started because we would like to get this thing
concluded. So, if you can give me a call about both of these I
would appreciate it.
7. On or about October 30, 2009, Mr. Astorino left a voicemail for Mr.
Johnson indicating that he was returning his call. Mr. Johnson phoned Mr.
Astorino in early November to obtain negotiation dates, and Mr. Astorino said
that he had to get his committee together, and would get back to him.
8. Other employee organizations representing City bargaining units
filed written Notices to Negotiate in 2009. Local 1141 desired an extension
of the previous agreement and did not file a Notice to Negotiate.
9. On December 4, 2009, Local 1141 sent a letter to the City stating
that pursuant to Article XXIII of the 2008-09 CBA and O.R.C. §4117.14(B)(1),
Local 1141 had decided not to file a Notice to Negotiate. Local 1141
explained that it was prepared to extend the 2008-09 CBA for another year
per the terms of the contract.
10. On December 10, 2009, the City filed a Notice to Negotiate with
SERB, which was assigned Case No. 2009-MED-12-1505 and served upon
Local 1141 with a letter from Gary Johnson, outside counsel for the City.
The City’s first written correspondence regarding negotiations for a successor
CBA was the service upon Mr. Astorino of the City’s Notice to Negotiate.
11. In the Notice to Negotiate, the City acknowledged that the parties
had not adopted a mutually agreed upon negotiations dispute settlement
procedure (“MAD”).
12. After the filing of the Notice to Negotiate on December 10, 2010,
the City and the Union did not engage in formal negotiations.
13. In December 15, 2009, the Union filed a Policy Grievance at Step 3
of the contractual grievance procedure, claiming the Notice to Negotiate was
wrongfully filed and was a misapplication of Article XXIII of the 2008-09
CBA.
14. On December 21, 2009, SERB General Counsel J. Russell Keith
sent letters to Mr. Astorino and Mr. Johnson, informing them of the
assignment of the mediation case number. In the letter, Mr. Keith wrote,
“we understand that the parties do not have a mutually agreed dispute
settlement procedure (MAD) to resolve any impasses in current negotiations
and that the statutory dispute settlement procedure is to apply.”
15. On January 11, 2010, Local 1141 filed a Motion to Dismiss the
City’s Notice to Negotiate, alleging that the City’s notice was not timely under
§4117.14(B)(1)(a) which provides that “any public employer or exclusive
representative desiring to terminate, modify, or negotiate a successor
collective bargaining agreement shall * * * [s]erve written notice upon the
other party * * * not less than sixty days prior to the expiration date of the
existing agreement[.]”
16. While Local 1141’s Motion to Dismiss was pending, the parties
engaged in preliminary discussions regarding proposals for a new contract.
Two meetings were held in January 2010. In attendance were two
representatives from the City, Mayor Elliot and the City’s Human Resources
Director, and two representatives from the Union. The Union considered the
January meetings productive. Local 1141 suggested that it would withdraw
its Motion to Dismiss the Notice to Negotiate if the City proposed respectable
terms the Union Executive Officers could present to the Union body. Local
1141 also indicated its willingness to make certain concessions the City
desired if the City was willing to agree to stop pursuing the elimination of the
nine-man minimum manning requirement that had existed in the parties’
contracts for quite some time.
17. On January 25, 2010, the City opposed the Motion to Dismiss,
asserting that its notice was not untimely under Article XXIII of the 2008-09
CBA.
18. On February 2, 2010, SERB denied Local 1141’s Motion to
Dismiss. SERB reasoned that §4117.14(B) does not contain a “penalty”
provision that explains what happens if a party fails to file its Notice to
Negotiate at least sixty days before the expiration of the prior contract. In
addition, SERB noted that Article XXIII does not contain a sixty-day
requirement to initiate negotiations. Therefore, SERB decided that the
City’s Notice to Negotiate was not untimely under Article XXIII, and the City
was not subject to any penalties under §4117.14(B).
19. After SERB denied Local 1141’s Motion to Dismiss, one more
meeting was held between the parties on February 5, 2010. At that meeting,
the discussions became tense after the City withdrew certain proposals made
at previous meetings. The February meeting ended with the parties
standing, yelling at each other, and the Mayor ordering the Executive Officers
from the Union to leave his office.
20. On February 15, 2010, Mayor Elliot sent a letter to Local 1141
stating that Local 1141 had refused to negotiate a successor collective
bargaining agreement, that Local 1141 had waived its right to negogiate, and
that, therefore, the City would unilaterally impose a collective bargaining
agreement for the 2010 calendar year (“the 2010 CBA”). The City stated that
the 2010 CBA contained the same provisions as the expired 2008-09 CBA
except for changes to insurance, the number of employees allowed off on
vacations and holidays, overtime rates, and the elimination of letters of
understanding.
21. On February 16, 2010, in a letter to the City, Local 1141 responded
that it knew of no provision in Chapter 4117 allowing a municipality to
unilaterally impose a collective bargaining agreement upon a bargaining unit.
Local 1141 wrote that the City ignored the remedy provided in
§4117.14(C)(2), which states that parties unable to reach agreement can
notify SERB to intervene.
22. Also, on February 16, 2010, Local 1141 field a Notice of Appeal to
the Franklin County Court of Common Pleas with SERB and filed a Notice of
Administrative Appeal in the Franklin County Court of Common Pleas (Case
No. CV002473) of SERB Directive Denying the Local’s Motion to Dismiss in
Case No. 09-MED-12-1505.
23. On March 19, 2010, against objections from Local 1141 and at the
request of Mayor Elliot, the Brook Park City Council held a special meeting
and adopted Ordinance No. 9639-1010 approving the City’s proposed 2010
CBA. The contract amendments/deletions were implemented by the City
after City Council approved the ordinance and have been in effect since that
time.
24. The City, at all times relevant, never requested SERB to
intervene.
25. The contract unilaterally adopted by the City for 2010 amended or
deleted the following provisions of the 2008-09 CBA:
Article X - Overtime
Article XII - Vacation
Article XIII - Holidays
Article XV - Health Insurance
Article XVI - Clothing Allowance
Letter of Understanding - Physical Examination and Training
Letter of Understanding - Nine Man Minimum
Memorandum of Understanding - HRA Payroll Deduction
{¶4} Local 1141 filed an Unfair Labor Practices Charge (ULP) with
SERB, alleging that the City had violated R.C. 4117.11(A)(1) by unilaterally
imposing a successor CBA. After a hearing, the ALJ issued a Proposed
Order recommending that SERB find the City had violated R.C. 4117.11(A)(1)
and (5). The City filed exceptions. SERB adopted the ALJ’s reasoning and
remedy in its order issued September 30, 2010. The SERB order included
cease and desist, as well as, affirmative action directives to the City.
{¶5} The City pursued an appeal from SERB’s order in the Cuyahoga
County Court of Common Pleas pursuant to R.C. 4117.13(D). The trial court
found that substantial evidence in the record supported SERB’s order and,
therefore, affirmed it.
{¶6} The City commenced a timely appeal to this Court that advances
the following two assignments of error:
First Assignment of Error:
THE LOWER COURT ABUSED ITS DISCRETION BY
AFFIRMING AN ORDER FROM THE STATE EMPLOYMENT
RELATIONS BOARD FINDING THAT BROOK PARK
VIOLATED R.C. 4117.11(A)(1) AND (5) BY IMPOSING TERMS
OF A COLLECTIVE BARGAINING AGREEMENT WITHOUT
EXHAUSTING STATUTORY BARGAINING PROCEDURES.
Second Assignment of Error:
THE LOWER COURT ABUSED ITS DISCRETION BY
AFFIRMING SERB’S USE OF INCORRECT LAW TO DEFINE
“ULTIMATE IMPASSE” AND NOT FIND THAT THE UNION
WAIVED ITS RIGHT TO NEGOTIATE BY NOT
PARTICIPATING IN THE PROCESS AS THE LAW REQUIRES.
{¶7} The abuse of discretion standard applies to determine whether
the trial court erred by affirming SERB’s order. “The appellate court must
affirm the judgment of the trial court if no abuse of discretion occurred.”
Lorain City Bd., 40 Ohio St.3d 257, 260-261.
It is an unfair labor practice for a public employer, its
agents, or representatives to:
(1) Interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Chapter 4117. of the Revised
Code or an employee organization in the selection of its
representative for the purposes of collective bargaining or the
adjustment of grievances;
***
(5) Refuse to bargain collectively with the representative of
his employees recognized as the exclusive representative or
certified pursuant to Chapter 4117. of the Revised Code[.]
R.C. 4117.11(A)(1) and (5).
{¶8} The trial court affirmed SERB’s order that found that the City
committed a ULP because it failed to maintain the terms of the 2008-09 CBA
until ultimate impasse by failing to exhaust statutory dispute settlement
procedures and that constituted bad faith bargaining in violation of R.C.
4117.11(A)(1) and (5).
{¶9} The City argues its unilateral imposition of the 2010 contract was
rightful based on its opinion that Local 1141 had committed an ULP by
allegedly refusing to negotiate. Local 1141 responds that the unilateral
imposition of the 2010 contract was a form of unauthorized self-help and
invaded the exclusive jurisdiction of SERB. Local 1141 maintains that the
City failed to avail itself of lawful options, including the pursuit of a ULP
against Local 1141 or seeking SERB’s intervention. The City explains that it
did not pursue SERB’s intervention because the City was struggling
economically and it would take too long to pursue that option.
{¶10} It is clear that “[e]xclusive jurisdiction to resolve unfair labor
practice charges is vested in SERB.” State ex rel. Ohio Dept. of Mental Health
v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, 786 N.E.2d 49, ¶ 23; E.
Cleveland v. E. Cleveland Fire Fighters Local 500, I.A.F.F., 70 Ohio St.3d 125,
127-128, 637 N.E.2d 878 (1994). Self-help remedies in response to alleged
unfair labor practices invade SERB’s exclusive jurisdiction and undermine
the statutory mechanisms that have been enacted to address unfair labor
practices. In re City of N. Royalton, SERB 99-002 (1-22-99).
{¶11} At the time the City imposed the 2010 contract, the parties
were in the period called “status quo ante,” which is the time period between
the expiration of the official contract and the exhaustion of the dispute
settlement procedures. In re Circleville, SERB 2005-007 (8-25-05). During
status quo ante the prior contractual provisions carryover until the parties
reach ultimate impasse. “If the parties never reached ultimate impasse,
then the unilateral implementation of [employer’s] last, best offer was a
ULP.” Twinsburg City Sch. Dist. Bd. v. State Emp. Relations Bd., 172 Ohio
App.3d 535, 2007-Ohio-957, 876 N.E.2d 580, ¶ 14 (9th Dist.).
{¶12} SERB found that the parties had not reached ultimate impasse
pursuant to Ohio Adm.Code 4117-9-02(E), which provides:
(E) Except as the parties may modify the negotiation process by
mutually agreed-upon dispute settlement procedures, the parties
shall continue in full force and effect all the terms and conditions
of any existing collective bargaining agreement, without resort to
strike or lockout, for a period of sixty days after the party gives
notice, until the expiration date of the collective bargaining
agreement, or the statutory dispute settlement procedures are
exhausted, whichever occurs later.
See also, SERB v. Circleville, SERB 2002-ULP-05-0341.
{¶13} The City asserts that it was an abuse of discretion for the trial
court to accept SERB’s definition of ultimate impasse. The City argues that
ultimate impasse occurs when there is no realistic possibility of a
continuation of discussion at that time that would have been fruitful. In
support, the City relies upon an excerpt from Twinsburg, which noted that
SERB had “adopted the NLRB’s definition of ultimate impasse in its
proceedings.” Twinsburg, 2007-Ohio-957, ¶ 15. Contrary to the City’s
position, this definition must be read in conjunction with, and not completely
ignore, the statutory scheme applicable to public employees’ collective
bargaining, which includes Ohio Adm.Code 4117-9-02(E).
{¶14} It is undisputed that the parties did not have a mutually
agreed-upon dispute settlement procedure (“MAD procedure”). Therefore,
the statutory dispute settlement procedures applied.
{¶15} The City did commence statutory dispute settlement procedures
with its Notice to Negotiate. R.C. 4117.14(B)(1). However, the City
maintains that the law does not permit it to move the process to conciliation
pursuant to R.C. 4117.14(D)(1). This interpretation of the statutory
provisions is unreasonable. The provisions of subsection (D)(1) and (D)(2)
simply set forth the varying procedures that govern strike-prohibited
employees and non-strike prohibited employees. They do not prohibit
employers of strike-prohibited employees from implementing the specified
procedures. The City offers us no precedent that would support this
interpretation and we have found none.
{¶16} Because the parties did not have a MAD procedure, they were
required to exhaust statutory settlement procedures before reaching
“ultimate impasse.” The City did not do so. The City made no attempt to
move to conciliation in this case despite notice from SERB that the statutory
dispute settlement procedures applied. SERB did not misinterpret the law
and the trial court did not abuse its discretion in this regard.
{¶17} The City further contends that Local 1141 waived its right to
bargain. A union will not be held to have foregone a statutory right absent a
“clear and unmistakable” waiver. E.g., Lakewood v. State Emp. Relations
Bd., 66 Ohio App.3d 387, 584 N.E.2d 70 (8th Dist. 1990). In this case, Local
1141 filed a motion to dismiss the City’s Notice to Negotiate with a
reasonable belief that it was untimely pursuant to Article XXIII of the
2008-09 CBA, and therefore, Local 1141 believed that the terms of the
existing contract would rollover. The record reflects that some preliminary
negotiations took place while Local 1141’s motion to dismiss was pending
with SERB. However, once the motion was denied, the negotiations soured
and ultimately the Union members were ordered to leave the City’s office.
Although Local 1141 perfected an appeal of the order denying its motion to
dismiss to Franklin County Court of Common Pleas, it has yet to be decided.
The record does not contain a clear and unmistakable waiver by Local 1141 of
its right to bargain.
{¶18} The trial court did not abuse its discretion by affirming SERB’s
order. The assignments of error are overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR