IN THE SUPREME COURT OF OHIO

Transcription

1 URI^INAt_ IN THE SUPREME COURT OF OHIO CITY OF CINCINNATI, OHIO. CASE NO 801 Plum Street, City Hall Cincinnati, Ohio 45202, Appellant, APPEAL NO. C vs- TRIAL NO. A STATE EMPLOYMENT RELATIONS BOARD 65 East State Street, Suite 1200 Columbus, Ohio 43215, and FRATERNAL ORDER OF POLICE QUEEN CITY LODGE NO Central Parkway Cincinnati, Ohio Appellees. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT CITY OF CINCINNATI JUL 27 zoos CLERK OF COURT SUPREME COURT OF OHIO

2 JOHN P. CURP ( ) City Solicitor RICHARD GANULIN ( ) PAULA BOGGS- MUETHING ( ) Assistant City Solicitors Room 214, City Hall 801 Plum Street Cincinnati, Ohio Telephone: (513) Fax: (513) ATTORNEYSFOR APPELLANT RICHARD CORDRAY Ohio Attorney General ANNE LIGHT HOKE ( ) Assistant Ohio Attorney General 30 East Broad Street, 26 th Floor Columbus, Ohio Telephone: (614) anne. STEPHEN LAZARUS ( ) KIMBERLY RUTOWSKI ( ) HARDIN, LAZARUS, LEWIS & MARKS, LLC 30 Garfield Place, Suite 915 Cincinnati, Ohio Telephone: (513) stevelazarus@hllmlaw.com krutowski@hllmlaw.com ATTORNEYS FOR APPELLEES

3 TABLE OF CONTENTS TABLE OF CONTENTS...ii I. EXPLANATION OF WIiY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST...1 II. STATEMENT OF THE CASE AND FACTS...6 III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...8 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... 8 A. SERB relied upon inapposite federal cases to conclude that the City of Cincinnati had committed an unfair labor practice...8 B. Ohio statutes authorize a public employer to use conciliation procedures to attempt to modify the composition of a collective bargaining unit when negotiations for a successor agreement reach impasse C. Ohio common law authorizes a public employer to use conciliation procedures to attempt to modify the composition of a collective bargaining unit during negotiations for a successor agreement...14 IV. CONCLUSION...14 CERTIFICATE OF SERVICE...16 ii

4 I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERALINTEREST The First District Court of Appeals mocked the City of Cincinnati's good-faith attempt to use statutory conciliation procedures (during negotiations for a successor collective bargaining agreement) to change the composition of a collective bargaining unit and thereby fulfill the spirit of the City's home-rule Charter (requiring that newly-appointed assistant police chiefs serve as unclassified employees): "The City, having lost before four successive times before four tribunals, appeals. We make it zero for five and affirm."t The Court of Appeals asserted in regard to the City's attempt to conform the terms of the successor collective bargaining agreement to the spirit of the City's Charter: "[I]t makes no sense."2 This public employment collective bargaining and home-rule case considers whether a municipality may use statutory collective bargaining procedures to assert its interest in changing the composition of a collective bargaining unit in a successor collective bargaining agreement in order to be consistent with the spirit of the municipality's charter. The decision by the First District Court of Appeals against the City of Cincinnati ("City") and in favor of the State Employment Relations Board ("SERB") and Queen City Lodge No. 69, Fraterrtal Order of Police ("FOP") prevents the City from using statutory procedures to merely take to conciliation 3 the City's interest in removing the rank of assistant police chiefs from the collective bargaining unit to be more consistent with the spirit of the City Charter's designation of assistant police ' Decision dated June 17, 2009, 2009 WL , 3. 2 Id. 19. ' Conciliation is the statutory collective bargaining procedure available after good-faith negotiations are exhausted with no prospect of reaching an agreement. 1

5 chiefs as unclassified employees. The City is not unilaterally excluding assistant police chiefs from the bargaining unit.4 Article 1, Recognition Clause, of the City-FOP collective bargaining agreement at the time of the negotiations for the subsequent agreement expressly provided the City with repudiation rights: [F] or the contract period and for a continuing period thereafter, unless either party gives written notice of its intention to repudiate this clause, the City agrees to recognize the FOP as the exclusive bargaining agent with the exclusive bargaining rights for all sworn members of the Cincinnati Police Department holding the ranks of... Lieutenant Colonel/Assistant Police Chief. (emphasis added). Effective November 6, 2001, Article V, Sections 3 and 5, Charter of the City of Cincinnati, established that newly appointed assistant police chiefs serve as unclassified employees of the City. The Charter provides: The city civil service shall be divided into the classified service and the unclassified service. In addition to the positions that comprise the unclassified service under state civil service law, the unclassified service of the city shall include department and division heads, deputies or assistants to department heads, and professional housing and economic development positions. The positions of police chief and assistant police chief shall be in the unclassified civil service of the city and exempt from all competitive examination requirements. The city manager shall appoint the police chief and assistant police chiefs to serve in said unclassified positions. The City previously abandoned its earlier attempt to negotiate individual employment contracts with each newlyappointed assistant police chief while assistant police chiefs remain in the bargaining unit. In a separate case filed by the FOP against the City, SERB concluded that the City had committed an unfair labor practice by actually negotiating individual employment contracts with the newly-appointed assistant police chiefs. The Court of Common Pleas (magistrate's decision summarily affirmed by the trial court) expressly acknowledged that the City had dismissed its challenge to that separate SERB decision. That dismissed individual employment contract issue is not before this Court. The sole issue before this Court in the case at bar is whether the City may try to negotiate a change in subsequent collective bargaining agreements to reflect the spirit of the City's Charter, and use statutory conciliation procedures, without committing an unfair labor practice. 2

6 This Court has held that unclassified employees are "appointed at the discretion of the appointing authority and serve[ ] at the pleasure of such authority." State ex rel. Hunter v. Summit Cty. Human Resource Comm. ( 1998), 81 Ohio St.3d 450, 453, 692 N.E.2d 185. SERB admitted in its Brief presented to the First District Court of Appeals that "1983 S 133, 4" [Section 4(A) of Am.Sub.S.B. No. 133, 140 Ohio Laws, Part I, 336, 367, the uncodified law establishing "deemed-certified units" (including the rank of assistant police chiefs, the subject of this appeal)] does not expressly protect the composition of a bargaining unit." SERB further admitted to the Court of Appeals that "a deemed-certified unit can be altered." The disagreement between the parties is that SERB has now restricted the parties engaged in collective bargaining negotiations for a new collective bargaining agreement to one of three common law procedures developed by this Court for altering the composition of a bargaining unit under an existing collective bargaining agreement. SERB precludes home-rule municipalities, like the City of Cincinnati, from using the statutory conciliation procedure to seek a change in the composition of the bargaining unit for purposes of achieving a successor collective bargaining agreement. SERB was blunt: "(N'Je cannot recognize these statutory procedures for this purpose. "5 As discussed below, SERB also erroneously relied upon inapposite decisions of the Nafional Labor Relations Board ("NLRB"), and that material error has so far survived subsequent review. At the time the case at bar was pending before the First District Court of Appeals, it was also briefly discussed during oral argument before this Court in the related Case No , State Employment Relations Board and City ofcincinnati v. Queen City Lodge No. 69, Fraternal 5 SERB Opinion , p. 11 (emphasis added). 3

7 Order ofpolice.6 During oral argument in Case No , counsel for the FOP acknowledged to this Court that the parties have been negotiating the relationship between the collective bargaining agreement and the City Charter for years. Counsel for the FOP stated to this Court: In each of those negotiations, the City has attempted to remove the language related to grievance on assistant chiefs; the City has also attempted to remove the promotions language in the tenninal benefits section. Their position is that they need to do that in order to be consistent with Issue 5 [Article V, Sections 3 and 5 of the City Charter]. The FOP has fought those proposals, gone to factfinding and conciliation in two of the negotiations, and gone to factfinding in another negotiation. And in each of those the City's position was rejected. So the contract language has remained the same. The inconsistency continues as it was there in Justice Pfeiffer's questioning during oral argument in Case No properly suggested that City officials be bound by both the letter and spirit of the City Charter when they negotiate collective bargaining agreements. Justice Pfeiffer and FOP counsel agreed that a collective bargaining agreement has a "start point and an end point." FOP counsel conceded to this Court, in irreconcilable conflict with the FOP's filing of an unfair labor practice charge against the City in the case at bar, that after the "end point" of a collective bargaining agreement the City Charter "can be implemented if it's awarded through the impasse procedure [conciliation] or the parties agree to it." Nevertheless, the FOP filed an unfair labor practice `This Court decided that it had improvidently granted jurisdiction in Case No , thus affirming the provision in the City of Cincinnati Charter empowering the City Manager to appoint assistant police chiefs to the unclassified service. The City-FOP collective bargaining agreement did not provide for promotions to the rank of assistant chief of police. 7 In fact, there is no facial inconsistency between the City of Cincinnati Charter (requiring that assistant police chiefs be appointed by the City Manager as unclassified employees) and the collective bargaining agreement (including assistant police chiefs in the collective bargaining unit but not addressing promotion into the rank). SERB decided in Case No before this Court, and the Court of Appeals had affirmed, that the letter of the Charter and the collective bargaining agreement do not conflict concerning promotions into the rank of assistant police chief. However, the spirit of the City Charter is that assistant police chiefs serve "at will" because they are unclassified. The collective bargaining agreement expressly provided assistant police chiefs certain rights that are generally inconsistent with the status of an unclassified employee. It is for that reason that City officials justifiably, and in good faith, attempted to negotiate a change in the composition of the collective bargaining unit to exclude assistant police chiefs. 4

8 charge against the City for using statutory conciliation procedures and SERB and the lower courts sustained the charge. Counsel for SERB asserted in oral argument in response to a question from Justice Pfeiffer that SERB had never addressed how to reconcile a conflict between an existing Charter provision and a new collective bargaining agreement. However, SERB had already sustained the FOP's unfair labor practice charge against the City (in the case at bar) for using the statutory conciliation procedure to try to incorporate the spirit of the existing City Charter into a new collective bargaining agreement. Justice Moyer recognized years ago that it is inappropriate to permit the composition of a collective bargaining unit to continue indefinitely. He argued that "[t]he Act, by its explicit language, protects only certification of the exclusive representative... not composition of the bargaining unit."8 The majority of this Court subsequently ratified "that deemed certified bargaining units should not remain frozen at the status quo that existed at the time of the passage of the collective bargaining law in 1983."9 The Court acknowledged the "philosophical underpinnings" of collective bargaining procedures, the need for a collective bargaining agreement to "adapt and evolve," and SERB's nonezclusive jurisdiction over the composition of a collective bargaining unit. The Court held that, during the term of a collective bargaining agreement, the agreement's grievance procedure is one way for the parties to resolve bargaining unit composition issues.10 It makes no sense to deprive any home-rule municipality of the opportunity to use statutory public employment collective bargaining procedures to merely seek a modification of a e Ohio Council 8, AFSCMEv. City of Cincinnati, 69 Ohio St.3d 677, , 635 N.E.2d 361 ( 1994) (dissenting opinion) (emphasis added). 9 Ohio Council 8, AFSCME v. SERB, 88 Ohio St.3d 460, 462, 727 N.E. 2d 912 (2000). '0 88 Ohio St.3d at

9 collective bargaining unit (during negotiations for a successor agreement) in order to be consistent with the spirit of a home-rule Charter. If the First District's decision remains intact, it will unreasonably imbalance the home rule-collective bargaining equation away from the democratic authority of the citizenry and toward employees. The sensitive and effective balance between the citizenry, when they create or modify their home-rule governments, and the interest of employees in collective bargaining, was subverted by SERB and the other lower tribunals. Accordingly, this Court should accept jurisdiction of this matter to rectify the unreasonable and unlawful limitation placed on home-rule municipalities by SERB. II. STATEMENT OF THE CASE AND FACTS On November 6, 2001, the citizens of Cincinnati voted to amend their home-rule municipal Charter. The Charter amendment, among other things, required that many management employees, including newly-appointed assistant police chiefs, serve as unclassified employees. The Cincinnati Police Department supervisors' collective bargaining agreement between the City and the FOP included assistant police chiefs in the deemed-certified collective bargaining unit. In 2004, during negotiations for the subsequent collective bargaining agreement, the City proposed removing assistant police chiefs from the bargaining unit in order to achieve consistency between the spirit of the Charter amendment and the collective bargaining agreement. Because the Charter required that assistant police chiefs serve as unclassified employees at the pleasure of the City Manager, it was consistent and justifiable (albeit not mandated by the Charter) for the City to negotiate to remove the assistant police chiefs from the collective bargaining unit (since the collective bargaining agreement provided grievance rights to the assistant police chiefs that limited the otherwise broad termination discretion conferred on the City Manager by the Charter). 6

10 Since the FOP objected to the City's proposal to remove assistant police chiefs from the collective bargaining agreement, the parties submitted the disagreement to fact-finding, as authorized by R.C (C). The fact-finder issued a report and recommendation that was rejected. Since the matter was at impasse, the parties then proceeded to conciliation under R.C (D)(1). The conciliator awarded the FOP's position, thereby maintaining the language from the prior collective bargaining agreement including assistant police chiefs in the collective bargaining unit. On March 3, 2005, the FOP filed an unfair labor practice charge at SERB against the City because the City sought to use conciliation procedures to modify the composition of the bargaining unit. SERB's administrative law judge recommended that SERB find the City committed an unfair labor practice by using the statutory conciliation procedures to pursue the City's interest in removing assistant police chiefs from the bargaining unit. The City filed exceptions to the administrative law judge's recommendation. On November 30, 2007, SERB issued a decision adopting the recommendation and holding that the City bargained in bad faith by using conciliation procedures to evaluate the City's proposal to remove assistant police chiefs from the collective bargaining agreement. The City appealed SERB's ruling to the Hanulton County Court of Common Pleas. The magistrate affirmed SERB's ruling and the trial court adopted the magistrate's decision. The City appealed the Common Pleas' judgment to the First District Court of Appeals. On June 17, 2009, the Court of Appeals affrrmed the lower court's judgment. The City timely filed its notice of appeal to this Court. The issue is simple. The impact is broad. If SERB may override the authority of the citizenry, through its elected officials, to use statutory collective bargaining procedures to seek a 7

11 change in a collective bargaining agreement to reflect the spirit of the citizens' home-rule Charter, then the calculus of home-rule public employer-public employee relations in Ohio will be substantially changed, not by the legislature but, rather, by administrative and judicial fiat. III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1 During good faith public employment collective bargaining negotiations, a homerule 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. A. SERB RELIED UPON INAPPOSITE FEDERAL CASES TO CONCLUDE THAT THE CITY OF CINCINNATI HAD COMMITTED AN UNFAIR LABOR PRACTICE SERB directed the parties down the path leading to this appeal by summarily relying upon three inapposite federal private employment cases.11 SERB cited Salt River Valley Water Users' Ass'n12 and United Technologies Corp.,13 two unilateral conduct cases including overt actual acts of exclusion by the employers, and Douds v. International Longshoremen's Association,14 a case in which the union was liable for an unfair labor practice by unilaterally disregarding a contemporaneous opinion issued by the NLRB disposing of the collective bargaining unit dispute. SERB erroneously concluded: "We concur with this reasoning.i15 The federal court in Salt River Valley Water Users' Ass'n affirmed the National Labor Relations Board and held that "by insisting upon excluding [a category of employees] from the appropriate bargaining unit and refusing to recognize the Union as their bargaining SERB Opinion , p NLRB 83 (1973), enf d, 498 F.2d 393 (9a' Cir. 1974). " 292 NLRB 248 ( 1989), aff'd, 884 F.2d 1569 (2"d Cir. 1989). 1" 241 F.2d 278 (2d Cir. 1957). SERB Opinion , p

12 representative" the employer had violated the National Labor Relations Act.16 The facts in that case were that the employer "with no prior notice to the Union and without affording the Union an opportunity to negotiate, the [employer] unilaterally eliminated jobs or work from the bargaining unit represented by the Union."17 The employer "refused to recognize the Union as the collective-bargaining representative of the people employed in the classification.i18 The NLRB emphasized that it was not just the parties' impasse but that the employer "in fact thereafter excluded the employees from the uniti19 that justified its conclusion that the employer violated the National Labor Relations Act. In United Technologies Corp., the federal court similarly emphasized that the employer unilaterally acted to exclude newly created positions from the bargaining unit. The employer's "refusal to recognize the union as the [new employees'] bargaining representative is what precipitated the instant litigation."20 The federal court made sense by acknowledging the legitimate interests of employers in the composition of a bargaining unit and the employers' corresponding burden: "An employer seeking to remove positions from a bargaining unit has the burden of showing sufficient dissimilarity so as to warrant their severance."21 The federal court in United Technologies Corp. further highlighted the differences between the cases relied upon by SERB to erroneously eliminate the City's interest in modifying the composition of the bargaining unit, and the case at bar: "It is axiomatic that an employer violates its duty to bargain... by changing employees' terms and conditions of employment without notifying and bargaining with the collective bargaining representative of its F. 2d at 394 ( emphasis added) NLRB at 83 (emphasis added). 81d. at 87. 1d. at 93 and 94 (emphasis added) F.2"d at (emphasis added). 2' Id. at

13 employees.i22 The NLRB had found that the employer "unilaterally exclud[ed] employees in the [specified] job classification..."23 The NLRB concluded, therefore, that the employer had to "[m]ake the [employees] whole for any losses..."24 In Douds v. International Longshoremen's Association, the federal court explained that the NLRB had jurisdiction to decide bargaining unit composition disputes, the NLRB had, in fact, just decided the bargaining unit issue in that case, and the union unilaterally disregarded the NLRB's ruling. The federal authorities relied upon by SERB were situations where employers had unilaterally and actually, on their own, excluded specified employees from the collective bargaining unit and deprived those employees of existing rights, or where the union had thumbed its nose at a contemporaneous NLRB decision addressing the identical collective bargaining unit issue. Those cases are inapposite and provide no support for SERB's conclusion in the case at bar (sustained by the lower courts) that the City committed an unfair labor practice by merely using statutory conciliation procedures to attempt to remove assistant police chiefs from the collective bargaining unit even though the City concedes that the assistant police chiefs remain in the bargaining unit until lawfully removed.25 z2id. at (emphasis added) NLRB at 248 (emphasis added). 24 Id. at 250. The City reiterates that its challenge to a second unfair labor charge filed by the FOP against the City (and sustained by SERB), related to the City's actual negotiation of individual employment contracts with newlyappointed assistant police chiefs, was voluntarily dismissed by the City in the Court of Common Pleas. That particular challenge is moot. The case at bar concems the City's interest in removing assistant police chiefs from the collective bargaining unit and the City's use of statutory conciliation procedures. The City does not argue that it has the right to unilaterally and actually exclude assistant police chiefs from the bargaining unit without operation of statutory procedures. 25 To reiterate, The City does not argue to this Court that the City may unilaterally and actually, on its own, exclude assistant police chiefs from the collective bargaining unit. 10

14 B. OHIO STATUTES AUTHORIZE A PUBLIC EMPLOYER TO USE CONCILIATION PROCEDURES TO ATTEMPT TO MODIFY THE COMPOSITION OF A COLLECTIVE BARGAINING UNIT WHEN NEGOTIATIONS FOR A SUCCESSOR AGREEMENT REACH IMPASSE In the collective bargaining agreement, the City expressly reserved the right to repudiate the composition of the bargaining unit: [F]or the contract period and for a continuing period thereafter, unless either party gives written notice of its intention to repudiate this clause, the City agrees to recognize the FOP as the exclusive bargaining agent with the exclusive bargaining rights for all sworn members of the Cincinnati Police Department holding the ranks of... Lieutenant Colonel/Assistant Police Chief. (emphasis added). Even assuming arguendo the City had not expressly reserved the right to repudiate the composition of the bargaining unit, Ohio Revised Code Chapter 4117 authorizes a public employer to use statutory conciliation procedures to seek a modification in the composition of a bargaining unit when negotiations for a successor agreement reach impasse. SERB and the lower courts disregarded the statutory distinctions between an employer seeking a change in the composition of a collective bargaining unit under the terms of an existing agreement, and an employer justifiably seeking a change, during negotiations, in the composition of a collective bargaining unit for a successor agreement. R.C (Subjects of bargaining; exclusions) provides: (A) All matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modifrcation, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative, except as otherwise specified in this section and division (E) of section of the Revised Code. ^ + * * * * (C) Unless a public employer agrees otherwise in a collective bargaining agreement, nothing in Chapter 4117 of the Revised Code impairs the right and responsibility of each public employer to [determine various reserved management matters]. The employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of 11

15 employment and the continuation, modification, or deletion of an existingprovision of a collective bargaining agreement.z6 This Court held that an employer reassigning work to persons outside the bargaining unit was required to bargain: [A] reasonable interpretation of R.C (C) is that where the exercise of a management right causes a change in or "affects" working conditions or terms of a contract, then the decision to exercise that right is a mandatory subject for bargaining.27 The Court emphasized that just because an employer has to bargain "does not require that an agreement be reached. It does, however, provide a process whereby employees will be consulted about decisions which have a profound impact on them and, thus, industrial peace will be preserved and promoted."28 The spirit of the amendment to the City Charter empowering the City Manager to appoint new assistant police chiefs to the unclassified service affected the "continuation, modification, or deletion of an existing provision of a collective bargaining agreement" because new assistant police chiefs are unclassified employees, the City reserved the right to repudiate, and it makes sense that assistant police chiefs should no longer continue as members of the collective bargaining unit. The Court of Appeals nullified the statute's broad "subjects of bargaining" statutory language, and its broad exception to the reservation of management rights, and instead summarily deferred to SERB's phantom and hypothetical interpretation: "[C]ourts must defer to SERB's interpretation R.C (A). SERB's interpretation of R.C (A) has already been noted."29 However, SERB's ruling does not even discuss R.C (A). The Court of Appeals' cryptic and erroneous adoption of SERB's alleged interpretation renders the statute's 2' Emphasis added. 'Lorain City School District Board ofeducation v. State Employment Relations Board, 40 Ohio St.3d 257, 262, 533 N.E.2d 264 (1988) (emphasis added) Ohio St.3d at Decision dated June 17, 2009,

16 second clause superfluous. If the broad "existing provision" clause after "and" is circumscribed by the "wages, hours, or terms and other conditions of employment" clause preceding "and' then the "existing provision" clause is meaningless. That makes no statutory sense. R.C (Liberal construction) requires that Chapter 4117 be "construed liberally for the accomplishment of the purpose of promoting orderly and constructive relationships between all public employers and their employees."30 It is not "orderly and constructive" to interpret Chapter 4117 to deny a home-rule municipality the opportunity to use statutory procedures to advance the municipality's interest in achieving a successor collective bargaining agreement conforming to the spirit of the municipal Charter. Even the federal decisions relied upon by SERB acknowledged that an employer has the opportunity to prove that certain employees are sufficiently dissimilar to others that they should not be part of the collective bargaining unit. In the case at bar, assistant police chiefs are the only employees in the collective bargaining unit serving in the unclassified service. Consequently, assistant police chiefs are materially dissimilar to all the other classified employees in the bargaining unit. There is nothing "orderly and constructive" about depriving the City of the opportunity to use statutory conciliation procedures to make its case. This Court long ago held that "` [t]he first general maxim of interpretation...' is that it is not allowable to interpret what... has no need of interpretation."31 Moreover, "[i]t is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the Emphasis added. " Lawler v. Burt, 7 Ohio St. 340, 350 (1857). Even if R.C (A) was deemed ambiguous, R.C allows this Court to consider, among other things, the "object sought to be attained" and "the consequences of a particular construction." 13

17 statute should be applied without interpretation."32 R.C (A) has no need for interpretation by SERB. C. OHIO COMMON LAW AUTHORIZES A PUBLIC EMPLOYER TO USE CONCILIATION PROCEDURES TO ATTEMPT TO MODIFY THE COMPOSITION OF A COLLECTIVE BARGAINING UNIT DURING NEGOTIATIONS FOR A SUCCESSOR AGREEMENT SERB, the FOP, the City, and the lower judicial tribunals all concede three connnon law procedures that may lead to a change in a collective bargaining unit during the term of an existing collective bargaining agreement. Citing three decisions of this Court, the Court of Appeals characterized them as the "three accepted methods.i33 None of these procedures empower a public employer in Ohio to achieve a change in the composition of a collective bargaining unit during the term of an existing collective bargaining agreement, or even while negotiating a successor agreement for which the employer has justifiable reasons for the change in composition. If this Court deems the statutory conciliation procedures in R.C unavailable to a home-rule municipality seeking a modification in the composition of a collective bargaining unit to achieve consistency with the spirit of the municipality's Charter, then, as it has done previously, this Court should articulate another common law procedure so that lower courts will know that there are "four accepted methods." IV. CONCLUSION It makes sense that a public employer in Ohio, like an employer subject to the National Labor Relations Act, has the opporfunity to prove to a decision maker that the composition of a bargaining unit needs to be modified. SERB and the other lower tribunals erred by concluding that the City had committed an unfair labor practice by using statutory conciliation procedures in 'Z Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770, 772 (1979). Decision dated June 17, 2009,

18 its attempt to conform the composition of the bargaining unit to the spirit of the home-rule municipal Charter. SERB and the other lower tribunals disregarded the material difference between seeking a change in the composition of a collective bargaining unit under the terms of an existing agreement and seeking the change while negotiating a successor agreement; relied on inapposite federal court decisions involving employers' actual, overt acts of exclusion; subverted the statutory language enacted by the Ohio General Assembly; and otherwise unduly limited the power of home-rule municipalities to balance self-government rights with collective bargaining duties. This Court should accept jurisdiction over this appeal. The Court should conclude that the City of Cincinnati did not commit an unfair labor practice by using statutory conciliation procedures to advocate the City's interest in a successor collective bargaining agreement consistent with the spirit of the City's home-rule Charter. Respectfully submitted, JOHN P. CURP ( ) City Solicitor P4^" (t'i" RICHARD GANULIN ( ) PAULA BOGGS-MUETHING ( ) Assistant City Solicitors Room 214, City Hall 801 Plum Street Cincinnati, Ohio Telephone: (513) Fax: (513) richard.ganulin@cincinnati-oh.gov paula.boggs@cincinnati-oh.gov JPC/RG/(pms) (Police) ULP Memo in Support of Appea10709-RG ATTORNEYS FOR APPELLANT 15

19 CERTIFICATE OF SERVICE I hereby certify that on July 24, 2009, a true and accurate copy of this Memorandum in Support of Jurisdiction of Appellant City of Cincinnati was mailed via USPS: Richard Cordray, Esq. Ohio Attorney General Anne Light Hoke, Esq. Assistant Ohio Attorney General 30 East Broad Street, 26th Floor Columbus, Ohio Stephen Lazarus, Esq. Kimberly Rutowski, Esq. Hardin, Lazarus, Lewis & Marks, LLC 30 Garfield Place, Suite 915 Cincinnati, Ohio Re t.t ^GaA Jm ^ Richard Ganulin ( ) Assistant City Solicitor 16

20 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO CITY OF CINCINNATI, OHIO, APPEAL NO. C-o8o819 TRIAL NO. A-o Respondent-Appellant, DECISION. vs. STATE EMPLOYMENT RELATIONS BOARD, and Plaintiff-Appellee, FRATERNAL ORDER OF POLICE, QUEEN CITY LODGE NO. 69, Complainant-Appellee. Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: June 17, 2009 Richard Cordray, Ohio Attorney General, and Anne Light Hoke, Assistant Ohio Attorney General, for Plaintiff-Appellee, Stephen S. Lazarus, Kimberly A. Rutowski, and Hardin, Lefton, Lazarus & Marks, LLC, for Complainant-Appellee, and John P. Curp, Cincinnati City Solicitor, Augustine Giglio, Assistant Cincinnati City Solicitor, and Jonathan J. Downes, Benjamin S. Albrecht, and Downes, Hurst & Fishel, LLP, for Respondent-Appellant. Please note: This case has been removed from the accelerated calendar.

21 OHIO FIRST DISTRICT COURT OF APPEALS MARK P. PAINTER, Judge. { 1} This case involves fallout from Cincinnati voters' approval of Issue 5 in Issue 5 succeeded in allowing the city manager to appoint the police chief and assistant chiefs and to remove them from the classified civil service. That issue was the subject of this court's previous case.' But all but one of the assistant chiefs remain in the bargaining unit of the union. {12} The Fraternal Order of Police, Queen City Lodge No. 69 ("the Union") filed an unfair labor practice ("ULP") charge with the State Employment Relations Board ("SERB") against the city of Cincinnati ("the City"). The charge was based on the City's insistence that the assistant chiefs be removed from the bargaining unit. The City took the issue to "impasse," requiring conciliation. (The conciliator ruled for the Union.) { 3} SERB determined that the City had committed a ULP. The City appealed to the Hamilton County Common Pleas Court. A magistrate affirmed SERB's decision, and the trial court adopted the magistrate's decision. The City, having lost before four successive times before four tribunals, appeals. We make it zero for five and affirm. I. Charter Amendment Leads to Litigation { 4} The Union is the exclusive bargaining agent for members of the Cincinnati police department. From 2000 through 2003, the City and the Union had a collective bargaining agreement ("CBA") that governed certain police officers' terms of employment with the City. In 2001, Cincinnati voters passed Issue 5, which I State Emp. Relations Bd. v. Queen City Lodge, Fraternal Order of Police, 174 Ohio App.3d 570, 2007-Ohio-5741, 883 N.E.2d 1083, 91I

22 OHIO FIRST DISTRICT COURT OF APPEALS was a Cincinnati City Charter amendment that removed guaranteed civil service commission appeal protection for assistant police chiefs and allowed them to be appointed by the city manager. The charter amendment did not specify whether assistant police chiefs should be removed from the Union's bargaining unit-for assistant police chiefs, Issue 5 only dealt with classified versus unclassified service, hiring, residence at the time of hiring, and promotion. { 5} In 2004 and 2005, the City and the Union negotiated a new CBA. The City proposed removing all references to assistant-police-chief positions from the CBA, including the "Recognition Clause." This clause mandated that the City recognize the Union as the exclusive bargaining agent for city police officers. Further, this clause prohibited the City from negotiating, meeting, or conferring with any entity other than the Union for the purpose of changing the terms of the CBA and barred the City from adopting any policy that conflicted with the CBA. The recognition clause placed the assistant-police-chief position in a Union bargaining unit. { 6} Throughout the bargaining process, the City maintained its position that the assistant-police-chief positions should be removed from the recognition clause and from the CBA as a whole. The City and the Union reached an impasse-all negotiations were exhausted with no prospect of reaching an agreement. Then, as mandated by R.C (D)(i), the City and the Union proceeded to conciliation. The conciliator sided with the Union. { 7} The Union filed a ULP charge against the city. SERB ruled that the City had bargained in bad faith by taking to impasse its proposal to remove the assistant-police-chief positions from the bargaining unit; thus, the City had committed a ULP. 3

23 OHIO FIRST DISTRICT COURT OF APPEAIS 11. Assignments of Error { 8} The City appealed to the trial court. The trial court adopted a magistrate's decision that the City had committed a ULP. The City now appeals the trial court's judgment. It argues that the trial court erred by (1) upholding SERB's order contrary to R.C. 4117; (2) permitting a deemed-certified bargaining unit to exist in perpetuity; and (3) deferring an opinion concerning the relevance of Issue 5 to the appeal. lll. Composition of Bargaining Unit is Not a Mandatory Subject of Bargaining { 9} Courts must give deference to SERB's interpretation of R.C. Chapter "SERB's findings are entitled to a presumption of correctness."3 We may reverse only if SERB's decision was unreasonable or if it conflicted with Chapter {110} The City argues that its proposal to remove assistant police chiefs was a mandatory subject of bargaining. Under R.C o8(A), "all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative." {111} The City contends that R.C (A)'s use of the phrase "the continuation, modification, or deletion of an existing provision of a collective bargaining agreement" made its proposal to modify the recognition clause a 2 Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, paragraph two of the syllabus. 3 Hamilton v. State Emp. Relations Bd., 70 Ohio St.3d 210, 214, 1994-Ohio-397, 638 N.E.2d State Emp. Relations Bd. v. Miami Univ., 71 Ohio St.3d 351, 353, 1994-Ohio-189, 643 N.E.2d

24 OHIO FIRST DISTRICT COURT OF APPEALS mandatory subject of bargaining. The Union and SERB argue that this phrase is modified by "all Inatters pertaining to wages, hours, or terms and conditions of employment." Further, SERB noted in its decision that nothing in the CBA made the composition of the bargaining unit a mandatory subject of bargaining. { 12} SERB was created to administer and enforce RC. Chapter Thus, courts must defer to SERB's interpretation of R.C o8(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. I1/. Three Methods of Altering a Bargaining Unit { 13} In its brief, SERB has outlined the three methods for altering the composition of a bargaining unit: (1) when another employee union challenges the standing union and is successful;6 (2) by agreement of the union and the employer to alter the unit;7 or (3) by a clause in the CBA that specifies a grievance procedure to be used to alter the bargaining unit's composition.8 5 Lorain City School Dist. Bd. of Edn., supra, at 26o. 6 Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Employees v. Cincinnati, 69 Ohio St.3d 677, 1994-Ohio-367, 63g N.E.zd g61, syllabus. 7 State ex re2. Brecksviile Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 74 Ohio St.3d 665, 1996-Ohio-31o, 66o N.E.2d 1199, syllabus. s Ohio Council8, AFSCME v. State Emp. Relations Bd., 88 Ohio St.3d 46o, 20oo-Ohio-370, 727 N.E.2d 912, syllabus. 5

25 OHIO FIRST DISTRICT COURT OF APPEALS { 14} The City contends that SERB, the magistrate, and the trial court erred by refusing to recognize a fourth method for altering a bargaining unit. First, it argues that R.C requires the parties to bargain over the "modification, or deletion of an existing provision of a" CBA. We have already rejected that argument. { 15} Second, the City argues that R.C (B) should mean that because the original CBA had expired, the City had the right to bargain over any subject, including the composition of the bargaining unit. Not so. R.C only pertains to the procedure that unions must follow to become the exclusive bargaining representative for an employee unit. It has no bearing on the composition of the unit. We decline the invitation to judicially create a fourth method for changing a bargaining unit's composition. The legislature is free to enact one; but it has not done so. V. Forcing Bargaining to Impasse Was an Unfair Labor Practice { 16} The City argues that the trial court erred when it adopted SERB's order, which determined that the City had committed a ULP when it brought to impasse the attempt to remove assistant police chiefs from the bargaining unit. SERB and the trial court correctly determined that the City had committed a ULP. {117} SERB determined that the City had violated R.C (A)(1)- "Interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in Chapter 4117"-and R.C (A)(5)-"Refus[ing] to bargain collectively with the * * x' exclusive representative." "Bargaining collectively" is defined by R.C : "to perform the mutual obligation of the public employer * * 6

26 OHIO FIRST DISTRICT COURT OF APPEALS * and the representatives of its employees to negotiate in good faith *** with the intention of reaching an agreement." { 18} We agree that the City violated the statute. The parties were not required to bargain over the composition of the bargaining unit, and by taking its proposal to conciliation, the City attempted to change the unit's composition by a method other than the only three methods available. { 19} In this case, were the City's position correct, a conciliator would have decided whether assistant police chiefs should be removed from the bargaining unit. To have a conciliator decide this issue is clearly not one of the three accepted methods of changing the composition of a bargaining unit. And it makes no sensecould a conciliator remove employees from a union? Thus, it was reasonable for SERB to determine that the City was not negotiating in good faith with the intention of reaching an agreement, and SERB's decision did not conflict with any statute. We overrule the City's first assignment of error. Vt. Existing in Perpetuity { 20} The City argues in its second assignment of error that the trial court erred by permitting the bargaining unit to exist in perpetuity. { 21} The trial court's decision did not ensure that the bargaining unit would exist in perpetuity. As we have noted, there are three ways to alter a bargaining unit. It is possible that another union could challenge the FOP and be successful.9 The Union and the City could agree to a change. 10 And the City is free to bargain with the Union about procedures to alter the composition of the unit. ll 9 Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Employees v. Cincinnati, supra. 10 State ex rel. Brecksville Edn. Assn., OEA/NEA, supra. " Ohio Council 8, AFSCME v. State Emp. Relations Bd., supra. 7

27 OHIO FIRST DISTRICT COURT OF APPEALS { 22} Because the trial court's decision did not have the effect of ensuring that the bargaining unit would exist in perpetuity, we overrule the City's second assignment of error. Vll. Issue 5 { 23} FinaIly, the City argues that the trial court erred by not considering the effect of Issue 5 on the composition of the bargaining unit. The magistrate refused to consider the effect of Issue 5 because the Ohio Supreme Court had accepted for appeal our decision in State Emp. Relations Bd. v. Queen City Lodge, Fraternal Order of Police 12 The trial court adopted the magistrate's decision. { 24} Ultimately, the Ohio Supreme Court dismissed the appeal;ls thus this court's decision stands. This court had determined that the charter amendment did not conflict with any portion of the CBA, and that the city manager had the power to appoint the chief and the assistant chiefs.'4 { 25} The City argues that Issue 5 mandates that assistant police chiefs be removed from the bargaining unit because that position (for new hires) is now an unclassified position, and because civil service employees who work in unclassified positions work at the pleasure of the employer. Thus, the City contends, assistant police chiefs do not have the right to bargain over such issues as salary or disciplinary and firing procedures because they serve solely at the City's pleasure Ohio St.3d 1423, 2oo8-Ohio-969, 882 N.E.2d Queen City Lodge No. 69, FOP v. State Emp. Relations Bd., 12o Ohio St.3d 1221, 2oo9-Ohio- 255, 9o1 N.E.2d State Emp. Relations Bd. v. Queen City Lodge, Fraternal Order of Police, supra,

28 OHIO FIRST DISTRICT COURT OF APPEALs { 26} The City is correct that Issue 5 converted newly hired assistant police chiefs from classified to unclassified positions.ls And the city manager can now directly hire people for these positions. We held that the implementation of Issue 5 did not conflict with the CBA and was a valid exercise of the City's voters' power. But because the CBA does define the bargaining unit to include these positions, state law regulating collective bargaining-a higher law-supersedes Issue 5.16 { 27} Issue 5 removed assistant chiefs from the classified civil service. Classified employees are entitled to certain protections that unclassified employees do not receive.'7 But nothing in the statutes or the case law prohibits unclassified employees from belonging to a union or from being part of a bargaining unit. {128} In State ex. ret. Hunter v. Summit Cty. Human Resource Comm., the Ohio Supreme Court stated that "unclassified employce[s] [are] appointed at the discretion of the appointing authority and serve[ ] at the pleasure of such authority."1$ But that case did not involve an employee who was a part of a bargaining unit and thus is not applicable to the case at hand. Furthermore, this court has reviewed Ohio case law and can find no case law that would support the City's position. Vlll. Still in Bargaining Unit but not in Classified Civil Service { 29} It may seem an anomaly that newly appointed assistant police chiefs will not receive the protections afforded to classified employees but will remain in the Union and be subject to the provisions of the CBA. Issue 5 removed all civilservice provisions including hiring and promotion. But Issue 5 makes no mention of 15 Cincinnati City Charter, Article V, Section 5. i6 See State Emp. Relations Bd. v. Queen City Lodge, Fraternal Order of Police, supra, Baldwin v. Cincinnati, ist Dist. No. C-05o292, 2005-Ohio-6994,1I6 is 81 Ohio St.3d 450, 453, 199$-Ohio-614, 692 N.E.2d

29 OHIO FIRST DISTRICT COURT OF APPEALS their exclusion from the bargaining unit and thus has no effect on the bargaining unit's composition. And even if it did, Cincinnati voters could not override state law on this issue. { 30} The conciliator, SERB, the magistrate, and the trial court all got it right, and we affirm the trial court's judgment that so held. Judgment affirmed. HENDON, P.J., and CUNNINGHAIDI, J., concur. Please Note: The court has recorded its own entry this date. 10