DDDD. Oq'OINqt AUG 2 4?009 CLERK OF COURT SUPREME COURT OF OHIO. Al1G CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO

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1 Oq'OINqt IN THE SUPREME COURT OF OHIO CITY OF CINCINNATI, Appellant, vs. STATE EMPLOYMENT RELATIONS BOARD, and FRATERNAL ORDER OF POLICE QUEEN CITY LODGE NO. 69, Appellees. CaseNo.: On Appeal from the Hamilton County Court of Appeals, First Appellate District DDDD Al1G CLERK OF COURT SUPREME COURT OF OHIO MEMORANDUM IN RESPONSE OF APPELLEE FRATERNAL ORDER OF POLICE, QUEEN CITY LODGE, NO. 69 John P. Curp ( ) City Solicitor Richard Ganulin ( ) Paula Boggs-Muething ( ) Assistant City Solicitors 801 Plum Street, Room 214 Cincinnati, Ohio (513) (513) Fax richard.ganulin@cincinnati-oh.gov Counsel for Appellant, City of Cincinnati AUG 2 4?009 CLERK OF COURT SUPREME COURT OF OHIO Stephen S. Lazarus ( ) Kimberly A. Rutowski ( ) Hardin, Lazarus, Lewis & Marks, LLC 30 Garfield Place Cincinnati, Ohio (513) (513) Fax stevelazarus(crhllmlaw.com krutowski@hllmlaw.com Counsel for Appellee, Queen City Lodge No. 69, Fraternal Order of Police Richard Cordray Ohio Attorney General Anne Light Hoke ( ) Assistant Ohio Attomey General 30 East Broad Street, 26a' Floor Columbus, Ohio Counsel for Appellee, SERB

2 THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case is not a case of public or great general interest. It is a case where the City of Cincinnati ("City") seeks to unilaterally change the composition of a deemed certified collective bargaining unit that has been in existence since the enactment of Chapter 4117 of the Ohio Revised Code. SERB determined that the City committed an unfair labor practice when it forced the issue of bargaining unit composition to statutory impasse procedures. SERB refused to create a new way to alter bargaining units. The City wants this Court to ignore the State Employment Relations Board's ("SERB") expertise in interpreting and enforcing Chapter The Hamilton County Common Pleas Court and the First District properly deferred to SERB's expertise and affirmed SERB's Order. This Court should decline jurisdiction. I. STATEMENT OF FACTS Queen City Lodge No. 69, Fraternal Order of Police ("FOP") and the City of Cincinnati ("City") have been parties to written Collective Bargaining Agreements since The FOP represents two separate bargaining units, supervisors and nonsupervisors, each with their own bargaining agreement. When the Ohio legislature passed the Collective Bargaining Act, Chapter 4117, in the 1980's, both bargaining units were recognized as "deemed certified" and the rank of "Lieutenant Colonel/Assistant Chief' ("Assistant Chief') has been included in the supervisory bargaining unit since that time. The Supervisory Labor Agreement also contemplates that the City may remove one of the Assistant Chiefs from the bargaining unit as set forth in the Recognition Clause at Article I of the Labor Agreement. 1

3 In August, 2001, Cincinnati City Council passed an ordinance that placed a Charter Amendment, "Issue 5," on the November 6, 2001 ballot. Council took this action despite the fact that the terms of "Issue 5" were inconsistent with the Labor Agreement negotiated by the City and the FOP and ratified by both parties in January, "Issue 5" was passed by the electorate in November, "Issue 5" purportedly allowed the City to discipline and appoint persons to the rank of Assistant Police Chief without regard to the civil service process, or currently existing contractual rights. However, the terms of "Issue 5" are subject to the negotiated provisions of the Labor Agreement. In fact, the Assistant Police Chief positions were the only positions affected by "Issue 5" that were protected under a collective bargaining agreement. To the contrary, the Assistant fire chiefs left the firefighter's bargaining unit long before "Issue 5" and other positions covered by Issue 5 were never part of any bargaining unit. The Unfair Labor Practice Charge ("ULP") at issue was filed based on the City forcing the issue of removing assistant police chiefs from the bargaining unit to impasse procedures. When negotiations of a collective bargaining agreement are unsuccessful, the parties proceed to the statutorily mandated impasse procedures of fact-finding and conciliation under O.R.C (C) and (G). Fact-finding is an advisory process that can be rejected by either party. The fact-finder has broad authority to adopt one of the parties' final positions or craft his/her own suggested resolution. If either party rejects the fact-finder's recommendations, the parties proceed to conciliation. Conciliation is final and binding arbitration for police unions and other public employees who are statutorily prevented from striking. Unlike fact-finding, at conciliation, the conciliator is required to adopt the final offer of one of the parties on each issue. 2

4 Negotiations Despite the fact that Issue 5 grandfathered current Assistant Chiefs, during negotiations for the Labor Agreement, including fact-finding, the City greatly expanded their demands in the name of consistency with Issue 5 for the Assistant Chiefs. "The City proposes removing references to "Assistant Chiefs" from all sections of the Supervisor's collective bargaining agreement. The City proposes removing the positions of "Assistant Chiefs" from the Supervisors' bargaining unit altogether." The FOP objected to the City taking bargaining unit composition to impasse. In its fact-finding Brief, the City stated that removing the Assistant Chiefs was necessary to be consistent with Issue 5. The fact-finder was not receptive to the City's position stating, "Issue 5 was a bad idea from its inception. It was good that it was not included in the last Agreement. It continues to be best left out of the Agreement. It is not reconunended." Despite the fact-finder's reconunendation, inconsistent with Issue 5, Cincinnati City Council voted by a margin of 7-2 to accept the fact-finder's recommendation. With this vote, any arguments suggesting a moral or legal obligation on the part of the City to follow Issue 5 or the "will of the voters" can no longer be taken seriously. Specifically, counsel for the City previously claimed that "City Council has stated that it is required to follow the requirements imposed by such language [Issue 5]." Council's vote to accept a fact-finder's report that was inconsistent with Issue 5 makes clear the lack of consistency in their position. At Conciliation, the City again argued that "removing the Assistant Chief classification from the bargaining unit for employees hired or promoted to the classification after the effective date of Charter Amendment Issue 5" was necessary to be 3

5 consistent with Issue 5. The FOP objected to the City taking bargaining unit composition to impasse. Conciliator Janet Goulet correctly rejected the city's claims and stated: "The Fact-Finder's recommendation stands. The language in the most recent CBA (current contract) stays and the FOP position to maintain current contract language in the Definition [and Recognition] section of this contract is ordered." The FOP filed 2005-ULP based on the City taking to impasse the proposals to remove the assistant police chiefs from the bargaining unit. The FOP filed 2005-ULP after the City negotiated individual employment contracts with Assistant Police Chiefs Michael Cureton and Vincent Demasi without the involvement of the FOP. The employment contracts contained provisions that directly contradicted the collective bargaining agreement. SERB found the City did commit an unfair labor practice in both cases. The City appealed both cases to the Hamilton County Common Pleas Court, but voluntarily dismissed the appeal of 2005-ULP after briefs were submitted. Both the trial court and the First District affirmed SERB's Order. II. ARGUMENT IN OPPOSITION TO PROPOSITION OF LAW Proposition of Law No. 1 During good faith public employment collective bargaining negotiations, a home-rule municipality trying to modify the composition of a collective bargaining unit to achieve consistency with the spirit of its Charter does not commit an unfair labor practice by using statutory conciliation procedures. The courts below properly upheld SERB's determination that the City committed a ULP by unilaterally pursuing to statutory impasse proposals deleting Assistant Chiefs from a deemed-certified bargaining unit. The City argues that Ohio statutes and common law authorize a public employer to utilize statutory impasse procedures. However, this is 4

6 not the law in Ohio. SERB and Ohio Supreme Court precedent recognize three ways to amend a deemed-certified bargaining unit: (1) challenge by another employee organization, (2) a joint petition by the union and the employer, or (3) language in the collective bargaining agreement detailing how amendments are permitted. A unilateral attempt by the employer to alter a deemed-certified bargaining unit is clearly not a recognized method. SERB detailed the history of deemed-certified bargaining units citing Section 4(A) of Am.Sub.S.B. No.133, 140 Ohio Laws, Part I, 336, 367: 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 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 of the Revised Code. Notwithstanding any other provision of the act, any 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. i This Court addressed this issue in Ohio Council 8, AFSCME/AFL-CIO v. Cincinnati, stating "adjustments or alterations to deemed-certified collective bargaining units are not permitted until challenged by another employee organization."2 The Court clarified this ruling in State ex rel. Brecksville Edn. Assn. v. State Emp. Relations Bd., stating, "[s]ection 4(A) of Am.Sub.S.B. No. 133 does not deprive State Employment Relations Board of jurisdiction to consider a petition jointly filed by.employer and an exclusive representative requesting SERB to amend composition of deemed certified bargaining 1 SERB Opinion , pp Ohio Council 8, AFSCME/AFL-CIO v. Cincinnati ( 1994), 69 Ohio St.3d 677, 635 N.E.2d 361, syllabus. 5

7 unit "3 The Court found the distinction between a unilateral and joint petition to be critical in its analysis stating: We find the distinction between unilateral and joint petitions to be dispositive for the following reasons: (1) The language of Section 4(A) does not expressly require that SERB forgo jurisdiction, and we decline to read such a requirement into the statute; (2) Co-operative solutions are the express objective of Ohio collective bargaining law... Though it is reasonable to conclude, as we did in Ohio Council 8, that the General Assembly intended to protect preexisting collective bargaining relationships from unilateral attack by employers, it does not necessarily follow that the General Assembly intended to forever freeze the composition of units extant on October 6, SERB has also taken the position that an employee organization cannot unilaterally petition to amend a deemed certified bargaining unit.5 In Ohio Council 8, AFSCME/AFL-CIO v. SERB, the collective bargaining agreement specified the method to alter the composition of the bargaining unit.6 This Court stated, "The Employer and the union in this case governed their relationship through a collective bargaining agreement. That agreement spoke to the issue of the make-up of the bargaining unit, and amendments thereto: '7 Under these conditions, the Court recognized that a collective bargaining agreement's grievance procedure was another way to deal with unit composition. In the case at bar, the agreement is silent on amendments to bargaining unit composition. Simply listing who is covered by the agreement in the Recognition Clause does not mandate that changes to unit composition are covered by the agreement. A mandatory subject of bargaining is defined as "all matters pertaining to wages, hours, or 3 State ex rel. Brecksville Edn. Assn. v. SERB (1996), 74 Ohio St.3d 665, syllabus. 4 Id. at In re Groveport Madison Local School Dist. Bd of Ed, SERB ( ); In re Urbana City School Dist. Bd ofed, SERB ( ). 6 Ohio Council 8, AFSCME/AFL-CIO v. SERB (2000), 88 Ohio St.3d 460, Id. emphasis added. 6

8 terms and other conditions of employment" under R.C The City argued that repudiation language in the Recognition Clause gives the City authority to unilaterally alter the composition of the bargaining unit. However, SERB reviewed the Recognition Clause and correctly determined that: The recognition clause in the CBA does not set forth any agreement between the FOP and the City regarding amendments to the composition of the deemed-certified bargaining unit. Rather, the clause states that the City agrees to recognize the FOP as the exclusive representative of the previously-defined "sworn members" of the City's Police Department. Thus, this language does not reflect the parties' agreement upon a process to amend the composition of the bargaining unit.a There is no language in the Recognition Clause addressing changes to bargaining unit composition. The trial court adopted the Magistrate's decision that specifically stated: "The court finds SERB's finding in this regard is based on substantial evidence on the record and specifically denies the City's arguments pertaining to the CBA's `recognition clause'..." The First District agreed stating: SERB was created to administer and enforce R.C. Chapter Thus, courts must defer to SERB's interpretation of R.C (A). SERB'[s interpretation of R.C (A) has already been noted. And a clause that simply recites which police positions are a part of the bargaining unit is not a matter that pertains to "wages, hours, or terms and conditions of employment." Taking the City's argument to its extreme would mean that the Union and the City would be required to bargain over each and every clause in the entire CBA, and make the above-quoted language superfluous. We agree with SERB that the recognition clause, which defines the composition of the bargaining unit, is not a mandatory subject of bargaining.9 The goal of R.C is to promote "orderly and constructive relationships." In Ohio Council 8 this Court stated, "We continue to encourage the cooperative 8 SERB Order, p Cincinnati v. State Emp. Relations Bd., 2009-Ohio-2834, p.5. (citation omitted) 7

9 resolution of disputes, including those regarding the composition of bargaining units."io Certainly, pursuing changes to bargaining unit composition to impasse proceedings despite multiple objections by the FOP is not a "cooperative resolution." At fact-finding, the City proposed not only the removal of the newly appointed Issue 5 Assistant Chiefs, but also the grandfathered Assistant Chiefs. The FOP objected to pursuing bargaining unit composition to fact-finding and conciliation. By objecting to pursuing the issue to impasse, the FOP made clear that removing the Assistant Chiefs from the bargaining unit was a unilateral proposition by the City, not a "joint petition." Had the fact-finder or conciliator adopted the City's proposal to remove the Assistant Chiefs, it would have been over the objection of the FOP and clearly a unilateral attack on the bargaining unit strictly prohibited by Ohio Supreme Court precedent.>> If SERB is without jurisdiction to consider a unilateral petition from an employer, certainly a fact finder and/or conciliator lacks jurisdiction as well. The City also argues that SERB improperly relied upon federal law in making its determination that the City committed an unfair labor practice. This argument was not raised in the court below. Thus, the City waived its right to make this argument. Nevertheless, the City overstates SERB's use of federal law. The citations to federal law were limited to SERB's response to the City's argument that bargaining unit make-up became a mandatory subject of bargaining because the Recognition Clause lists the positions covered under the Labor Agreement. SERB disagreed with the City's position and stated: [t]he mere recitation in a recognition clause of the positions contained in a bargaining unit, whether deemed certified or Board certified, does not, 10 Id. t 1 See Ohio Council 8, supra; Brecksville, supra. 8

10 without more, make the composition of the bargaining unit a mandatory subject of collective bargaining. Cases decided under the National Labor Relations Act ("NLRA") are persuasive in this regard.ia SERB did not summarily rely upon inapposite federal cases as alleged by the City.13 SERB was interpreting Chapter 4117 and looking to federal law as "persuasive" authority on one issue. This Court has recognized that SERB was created to specifically to interpret Chapter "It was clearly the intention of the General Assembly to vest SERB with broad authority to administer and enforce R.C. Chapter This authority must necessarily include the power to interpret the Act to achieve its purposes." a Several years later, this Court reiterated its position stating: In assessing SERB's policy, this court must afford deference to SERB's interpretation of R.C. Chapter The General Assembly has entrusted SERB with the responsibility of administering the statute, and has bestowed upon it the special function of applying the statute's provisions to the complexities of Ohio's industrial life. In so doing, it has delegated to SERB the authority to make certain policy decisions. Our review is limited to whether SERB's policy is unreasonable or in conflict with the explicit language of R.C. Chapter 4117.is Additionally, this Court has held that merely listing a subject in a collective bargaining agreement does not make it a matter covered by the agreement for purposes of R.C Given the fact that the FOP represents two units with similar, but different labor agreements, the Recognition Clause in the agreements merely lists the members covered by that agreement to easily identify which agreement applies. The agreements do not contain any specific language detailing unit composition. The City and the FOP have not bargained over bargaining unit composition, therefore it is not a 12 SERB Order p Memorandum in Support of Jurisdiction, p Lorain City Bd ofedn. v. SERB (1988), 40 Ohio St.3d 257, State Emp. Relations Bd v. Miami Univ. (1994), 71 Ohio St.3d 351, 353 (citations omitted). 16 See State ex rel. Bardo v. Lyndhurst ( 1988), 37 Ohio St.3d 106,113. 9

11 mandatory subject of bargaining. SERB properly determined that bargaining unit composition is a nofa mandatory subject of bargaining and cannot be forced to statutory impasse procedures. III. CONCLUSION The City's attempts to remove the Assistant Police Chiefs from the bargaining unit through statutory impasse procedures are contrary to the purpose of Chapter This Court, as well as SERB, has clearly established that unilateral attacks by employers on bargaining unit composition are prohibited. As stated above, taking bargaining unit composition to fact-finding and conciliation after the FOP has expressly objected is nothing more than a unilateral attack by the City. This type of conduct shakes the foundation of collective bargaining and should be prohibited. The lower courts properly determined that SERB's Order was reasonable and supported by substantial evidence. This Court should decline jurisdiction. RespectfullyAubmitted, STEHF". LAZARUS ( ) COUNSEL OF RECORD KIMBERLY A. RUTOWSKI ( ) COUNSEL FOR APPELLANT, QUEEN CITY LODGE NO. 69, FOP Hardin, Lazarus, Lewis & Marks, LLC 915 Cincinnati Club Building, 30 Garfield Place Cincinnati, Ohio (513) (513)

12 CERTIFICATE OF SERVICE I hereby that a copy of the foregoing was served via Regular U.S. Mail on August 215`, 2009 upon the following: Anne Light Hoke, Esq. Assistant Attomey General Labor Relations Section 30 East Broad Street, 26`" Floor Columbus, Ohio Richard Ganulin, Esq. Assistant City Solicitor City of Cincinnati Room 214, City Hall 801 Plum Street Cincinnati, Ohio KifnberYy A. Rutowski ( ) 11