IFE'd CLERK OF COURT SUPREME COURT OF OHIO. CLERX OF COURT SUPREML GOUR f OF OHIO IN THE SUPREME COURT OF OHIO.

Transcription

1 ..-^.....^.t.... IN THE SUPREME COURT OF OHIO CITY OF MUNROE FALLS vs. Plaintiff/Appellant, STATE EMPLOYMENT RELATIONS BOARD, et al. Defendants/Appellees CASE NO: ^ k APPEAL FROM THE SUMMIT COUNTY COURT OF APPEALS, NINTH APPELLATE DISTRICT COURT OF APPEALS CASE NO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION Counsel for Plaintiff/Appellant: Jack Morrison, Jr. # Thomas R. Houlihan # * AMER CUNNINGHAM CO., L.P.A. 159 S. Main Street, Suite 1100 Akron, Ohio (PH) (FAX) Houlihan(a_7Amer-law.com * denotes counsel of record Representing Munroe Falls R IFE'd CLERX OF COURT SUPREML GOUR f OF OHIO Counsel for Defendants/Appellees: Lori Weisman ( ) Assistant Attorney General Labor Relations Section 615 West Superior Ave., l lth Floor Cleveland, OH Lori.weismanna,ohioattorneygeneral. gov Representing SERB Joseph M. Hegedus ( ) 92 Northwoods Blvd., Suite B-2 Columbus, Ohio '^ mhege (a sbc global. net Representing OPBA I - p ^^ ^ ^ ^ i ^^13 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Page I. WHY THIS CASE IS OF GREAT PUBLIC AND GENERAL INTEREST...1 II. STATEMENT OF CASE AND FACTS...2 III. LAW AND ARGUMENT...3 PROPOSITION OF LAW ONE: SINGLE-MEMBER COLLECTIVE BARGAINING UNITS ABATE AS A MATTER OF LAW....3 PROPOSITION OF LAW TWO: THE OHIO PUBLIC EMPLOYEES' COLLECTIVE BARGAINING ACT, OHIO REVISED CODE CHAPTER 4117, VIOLATES SECTION 3, ARTICLE XVIII OF THE OHIO CONSTITUTION, AS IT DENIES MUNICIPALITIES THE POWER OF LOCAL SELF-GOVERNMENT. CITY OF ROCKY RIVER V. STATE EMPLOYMENT RELATIONS BOARD, 43 OHIO ST.3D 1, 539 N.E.2D 103, (1989), OVERRULED....9 PROPOSITION OF LAW THREE: THE STATE EMPLOYMENT RELATIONS BOARD'S INTERPRETATION OF OHIO REVISED CODE CHAPTER 4117 AS EXTENDING TO INDIVIDUAL EMPLOYEES CONSTITUTES AN INAPPROPRIATE DELEGATION OF LEGISLATIVE AUTHORITY UNDER SECTION 1, ARTICLE II OF THE OHIO CONSTITUTION IV. CONCLUSION...13 V. CERTIFICATE OF SERVICE...15 VI. APPENDIX... Appx. page December 31, 2012 Court of Appeals Decision and Judgment Entry...1

3 1. WHY THIS CASE IS OF GREAT PUBLIC AND GENERAL INTEREST The appellate jurisdiction of the Ohio Supreme Court is invoked when a controversy presents either a substantial constitutional question or a matter of great public or general interest. Ohio Constitution, Article IV, 2(B); See Also Franchise Developers, Inc. v. City of Cincinnati, 30 Ohio St.3d 28, 31, 505 N.E.2d 966 (1987). This case should be accepted both as a matter of great public interest and as a substantial constitutional question. In the present case, the City of Munroe Falls police force had a two member collective bargaining unit comprised of Sergeants on its police force, which fell to one member by natural attrition. After this bargaining unit remained at one member for several years, the City of Munroe Falls refused to collectively bargain with one police sergeant, because collective bargaining presupposes bargaining with more than one person at a time. The sergeant's union, the Ohio Police Benevolent Association, complained to the State Employment Relations Board, which found that Munroe Falls engaged in an unfair labor practice for failing to collectively bargain with a single member bargaining unit. SERB made this finding despite the well-recognized federal authority under the National Labor Relations Act and authority from the vast majority of states with similar state employee collective bargaining statutes that collective bargaining units abate as a matter of law when their membership drops to one person. This is a principle of law never before tested in the Ohio courts,- and is a matter of general importance to municipalities state-wide. Further, this case raises a substantial constitutional question. In 1988, by a 4-3 majority, this Court found that a portion of the Ohio Public Employees' Collective Bargaining Act, Ohio Revised Code Chapter 4117, both violated Section 3, Article XVIII of the Ohio Constitution, and 1

4 constituted an inappropriate delegation of legislative power. City of Rocky River v. State Employment Relations Bd., 39 Ohio St.3d 196, 530 N.E.2d 1, (1988), (Rocky River 1). After a change to the composition of the Court, and following the unprecedented grant of a motion to reconsider the denial of a motion to reconsider, this Court in 1989 reversed itself again by a 4-3 margin and found Chapter 4117 to be constitutional. City of Rocky River v. State Employment Relations Board 43 Ohio St.3d 1, 539 N.E.2d 103, (1989), (Rocky River IV). This curious reversal, and the infirmity of the analysis in Rocky River IV, has been commented upon by current members of the Court. See City of Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 36, 40 (Lanzinger, J. dissenting, noting that Rocky River IV is "of little precedential value"). This case is the perfect vehicle for this Court to re-examine the legal analysis performed in Rocky River IV, because this case illustrates the extent to which the State Employment Relations Board has exceeded even the shaky legislative authority recognized in Rocky River IV by inserting itself into employment relationships between cities and individual employees. Thus, even if the interpretation of R.C. Chapter 4117 is not availing as a matter of state-wide interest, a substantial constitutional question is raised by this case. As a result, this Court should exercise its discretionary authority and accept this case for review. II. STATEMENT OF CASE AND FACTS The Ohio Police Benevolent Association was certified as the exclusive bargaining representative for the unit of Sergeants working for the City of Munroe Falls in At the time it was certified, the bargaining unit had two sergeants. There has been only one sergeant, Sgt. David Smith, in the bargaining unit since The OPBA and the City were parties to a 2

5 Collective Bargaining Agreement, covering the bargaining unit of full-time Sergeants with an effective date of April 1, In 2009, the OPBA notified the City that it intended to negotiate a successor collective bargaining agreement to replace the agreement scheduled to expire in Munroe Falls notified SERB and the OPBA that it was not willing to recognize a single member unit for collective bargaining purposes. The OPBA then filed an Unfair Labor Practice charge. SERB found probable cause that an unfair labor practice occurred, and issued a Complaint on November 3, The parties submitted joint stipulations of the facts set forth above. SERB found that Munroe Falls violated R.C (A)(1) and (A)(5), and ordered various forms of relief. An appeal was timely taken to the Summit County Court of Common Pleas and the Common Pleas Court issued its decision upholding SERB's decision on February 6, The City filed a further appeal to the Ninth District Court of Appeals, which on December 31, 2012 again upheld SERB's decision. This discretionary appeal ensued. III. ARGUMENT IN SUPPORT PROPOSITION OF LAW ONE: SINGLE-MEMBER COLLECTIVE BARGAINING UNITS ABATE AS A MATTER OF LAW. The central point of dispute between the parties in the courts below was whether the Munroe Falls Full-Time Sergeants Bargaining Unit may continue to exist with only one member. Courts all across the land have determined that single member bargaining units abate as a matter of law, but it is a matter of first impression in Ohio. The plain language of Ohio's statute allows only for collective bargaining, that is, bargaining with a unit composed of more than one employee. In R.C , public employees are granted the right to engage in "concerted activities for the purpose of collective 3

6 bargaining" and to "bargain collectively" with their employers. R.C explicitly requires bargaining units to contain more than one public employee. Under subsection (A), public employers are required to "extend to an exclusive representative *** the right to represent exclusively the employees in the appropriate bargaining unit." (Emphasis added). There is no language in the chapter which supports the notion that an individual employee is granted any particular rights to have SERB manage his or her employment conditions. Pursuant to R.C. 1.42, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." In determining the "common usage" of a word, this Court has reviewed dictionary definitions. Whaley v. Franklin Cty. Bd. of Commrs. (2001), 92 Ohio St.3d 574, 578, 2001-Ohio A review of the words used in R.C and.04 reveal that all of the words chosen by the state legislature relate to actions by more than one person. The term "collective" means "of or characteristic of a group of individuals taken together."1 The term "concerted" means "contrived or arranged by agreement; planned or devised together."2 These are references to collective action, not unilateral action by a single employee. In so defining collective action, R.C. Chapter 4117 is similar to the National Labor Relations Act. In fact, the statutes are so similar that this Court has noted that the National Labor Relations Board's treatment of Unfair Labor Practice charges is "instructive" when interpreting R.C. Chapter State Emp. Relations Bd. v. Miami Univ. (1994), 71 Ohio St. 3d 351, 353, 643 N.E.2d The NLRB has always taken the position that it will not certify a single 1 Dictionary.com Unabridged. Random House, Inc. htw //dictionarx reference. com/browse%ollective (accessed: September 14, 2010). 2 Dictionary.com Unabridged. Random House, Inc. http //dictionary reference. coni/browse%oncerted (last visited Dec. 29, 2010). 4

7 member bargaining unit. In Luckenbach Steamship Co., 2 N.L.R.B. 181, 193 (1936), the NLRB noted that "the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain. The Act therefore does not empower the Board to certify where only one employee is involved." Id. Over time, this reasoning spread to Unfair Labor Practice actions, as well. In Haas Garage Door Co., 308 N.L.R.B. 1186, 1187 (1992), the NLRB found that "when a unit consists of no more than a single permanent employee at all material times, an employer has no statutory duty to bargain and thus, will not be found in violation of the Act for disavowing a bargaining agreement or refusing to bargain." In D & B Masonry, 275 N.L.R.B. 1403, 1408 (1985), the NLRB noted that "if an employer employs one or fewer unit employees on a permanent basis" the employer "may withdraw recognition from a union, repudiate its contract with the union, or unilaterally change employees' terms and conditions of employment without affording the union an opportunity to bargain." See also Stack Electric, Inc., 290 N.L.R.B. 575 (1988); Laborers Health & Welfare Trust Fund v. Westlake Development, 53 F.3d 979 (9th Cir. 1995); J. W. Peters, Inc. v. Bridge Structural & Reinforcing Ironworkers, 398 F.3d 967 (7th Cir. 2005). Further, many states have similar collective bargaining statutes for state employees. These other states have nearly uniformly found that single member bargaining units abate as a matter of law. In Town of Winchester v. Conn. State Bd. oflabor Relations (1978), 175 Conn. 349, , 402 A.2d 332, 339 n.6, the Connecticut Supreme court held that "[a] one-person unit is not an appropriate unit for collective bargaining under the MERA (Municipal Employee Relations Act)." Therefore, the municipal employer "did not have the duty to bargain collectively with the union," and as a result, "did not violate [the statute] by termination of the 5

8 negotiations with the union for that reason." Id. Similar results attend in many other cases. Teamsters, Local 722, v. City of Galena, No. S-RC , (December 16, 2004) 20 Pub. Employee Rep. for Illinois 182; Grand Traverse County, Public Employer, v. Joseph D. Smith, Docket No. R95 J-160, (January 19, 1996), 9 Michigan Pub. Employee Rep ; Borough of Highland Park v. Schultz, Docket No. CI-93-88; D.U.P. NO (September 3, 1993), 19 New Jersey Pub. Employee Rep ; Florida Police Benevolent Association, Inc., v. City of Fernandina Beach, Docket No. RC ; Order No. 90E-007, (January 10, 1990) 16 Florida Pub. Employee Rep Roaring Brook Township Police Department v. Roaring Brook Township, Docket No. PF-C E, (March 3, 1986), 17 Pennsylvania Pub. Employee Rep Most notably, in New York, the Public Employees Relation Board was faced with a strikingly similar situation in Town of Crawford Police Benevolent Association v. Town of Crawford, Case No. CP-606, (February 29, 2000), 33 Off. Dec. of N.Y. Pub. Employ. Rel. Bd There, considering whether a single police sergeant could constitute a bargaining unit, the Board found that "collective bargaining presupposes that there is more than one eligible person.... " Id. The fact that the sergeant did not fit into any other bargaining unit did not affect the analysis: "That our determination leaves the sergeant unrepresented does not warrant a contrary finding." Id. But SERB, in a 1988 administrative decision, In Re City of Wauseon, SERB ( ) made an opposite finding. This administrative decision is the only authority cited in the courts below to support the conclusion that Munroe Falls committed an Unfair Labor Practice by failing to collectively bargain with a single police sergeant. City of Munroe Falls v. State 6

9 Employment Relations Board, 9th Dist. No , 2012-Ohio-6212, (Appendix p. 6). In Wauseon, SERB cited to R.C (D)(6), which mandates that SERB not certify bargaining units "that includes rank and file members of the department with members who are of the rank of sergeant or above." In considering this language of limitation, the Wauseon panel stated: Given these statutory constraints on unit design, the only way the sergeant in this police department may reap the bargaining and representational benefits of O.R.C. Chapter 4117 is through the approval of a single-sergeant unit. This Board is not inclined to deny an employee the opportunity to exercise the rights of representation and bargaining simply because an unusual statutory term results in a peculiar unit structure. Respectfully, it is not SERB's role to find creative ways to circumvent the statutory limitations that were imposed upon its power. SERB is to apply the statutes to the limits of its authority, and no further. The very purpose of Chapter 4117 allows only for "collective" bargaining, meaning collective bargaining units which are truly "collective," not individual. SERB's fundamental error in Wauseon, disclosed in the language above, was treating bargaining and representational rights as rights guaranteed to an individual. But R.C. Chapter 4117 does not grant individual rights to anyone. R.C. Chapter 4117 is designed to protect the collective rights of combinations of people. It is a bargaining unit, not a person, which has the right to union representation. And it is a bargaining unit, not a person, which may bargain collectively. There is no personal right on behalf of an individual employee to the benefits guaranteed by R.C. Chapter those are benefits guaranteed to collective associations only. R.C (D)(6) plainly contains language of limitation, not authorization. SERB was not empowered by the legislature with the powers of equity, or designated as the general arbiter of fairness in all employment relations. Rather, the state legislature prescribed a specific role for SERB - to administer the collective bargaining provisions of R.C. Chapter The 7

10 express language of R.C. Chapter 4117 limits its operation exclusively to collective bargaining, not individual employment relationships. R.C , , Thus SERB exceeded its power when it injected itself into the employment relationships of individual municipal employees through the Wauseon decision. The Ninth District concluded that Miami Univ. provided support for the notion that bargaining units continue to exist even when there is doubt as to that unit's status, at least until SERB acts to clarify the unit's status. City of Munroe Falls v. State Employment Relations Board, 2012-Ohio-6212 at 12 (Appendix p. 6-7), quoting Miami Univ. 71 Ohio St.3d at 354. But the Miami Univ. Court was not presented with a situation where a collective bargaining unit ceased to exist because there was no "unit" of employees to collectively bargain. In Miami Univ., there was a dispute as to whether employees, sufficient in numbers to invoke the terms of R.C. Chapter 4117 and engage in collective bargaining, wished a union to continue to represent them. Because continued SERB involvement was a potential outcome of the dispute, it made sense to compel the employer to wait for SERB to determine the legal status of the bargaining unit. But here, Sgt. David Smith does not, as a matter of law, constitute a "bargaining unit" under the terms of R.C. Chapter This is a self-executing matter of law which does not require SERB's interpretation or involvement. Thus Miami Univ. does not compel the courts or the parties to perpetuate the fiction that a single person is a bargaining unit. In the courts below, SERB identified the Wauseon decision as narrow in scope. But the text of Wauseon belies that position. The concluding paragraph of Wauseon is sweeping in scope: Thus, where there is no other possible unit configuration, where the employee seeks representation by an established employee organization that also represents other units in collective bargaining, and where no harmful effects to the 8

11 Employer's efficiency or structure are demonstrated, this Board will find singleemployee units appropriate. Thus, under Wauseon, when a city hires a single person to act as a cook at the fire station, the cook can be his or her own bargaining unit. Or when a village hires a single service department employee, that employee shall enjoy the benefits of collective bargaining, all by his or her lonesome. The permutations are endless, and have been played out in the many cases cited above nationwide which considered and rejected single-member bargaining units. Accordingly, this is not a narrow issue - it is a matter of statewide importance to municipalities. SERB has traditionally been granted some deference in interpreting R.C. Chapter However, that deference is set aside when SERB's interpretation is "unreasonable or in conflict with the explicit language of R.C. Chapter 4117." Miami Univ., 71 Ohio St. 3d 351 at 353. In this case, SERB's decision to treat the text of R.C (D)(6) as language of authorization, rather than limitation, is clearly unreasonable. As such, this Court should exercise its discretion and accept this appeal for review. PROPOSITION OF LAW TWO: THE OHIO PUBLIC EMPLOYEES' COLLECTIVE BARGAINING ACT, OHIO REVISED CODE CHAPTER 4117, VIOLATES SECTION 3, ARTICLE XVIII OF THE OHIO CONSTITUTION, AS IT. DENIES MUNICIPALITIES THE POWER OF LOCAL SELF-GOVERNMENT. CITY OF ROCKY RIVER V. STATE EMPLOYMENT RELATIONS BOARD, 43 OHIO ST.3D 1, 539 N.E.2D 103, (1989), OVERRULED. In addition to the question above concerning the interpretation of R.C. Chapter 4117, this case raises important constitutional questions. A municipality's right to establish the terms and conditions of a public employee's employment are firmly within the scope of its constitutional home-rule powers and may not be abrogated by a statute which seeks to restrict the authority of local governments. R.C. Chapter 4117 forces municipalities to recognize public employee 9

12 unions and impermissibly infringes upon the power and authority of a municipality to control the terms and conditions of employment for its employees. In Ohio, municipalities derive their home-rule powers of self-government from Section 3, Article XVIII of the Ohio Constitution, which provides "[m]unicipalities shall have authority to exercise all powers of local selfgovernment and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." City of Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 7-8. This Court has repeatedly stated that it is within the power of a municipality to establish wages for its employees, and that such a power is within the authority of local self-government. State ex rel. Mullin, v. Mansfield (1971), 26 Ohio St.2d 129, 269 N.E.2d 602; Northern Ohio Patrolmen's Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 383, 402 N.E.2d 519 (noting "[i]t has been firmly established that the ability to determine the salaries paid to city employees is a fundamental power of self-government.") A municipality's power of home rule is constitutionally limited to powers not in conflict with general laws. Ohio Constitution Article XVIII, Section 3. But general laws are laws that exercise the police power, not laws that purport to limit a municipality's authority. "General laws are those enacted by the General Assembly to safeguard the peace, health, morals, and safety and to protect the property of all people of the state." Linndale v. State (1999), 85 Ohio St.3d 52, 54, 706 N.E.2d 1227, 1229, citing Schneiderman v. Sesanstein (1929), 121 Ohio St. 80, 82-83, 167 N.E. 158, 159. To be considered a general law for purposes of home-rule analysis, a statute must, itself, "set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar 10

13 regulations * **." City of Canton at 121. Here, R.C. Chapter 4117 does not itself set forth police or sanitary regulations, but instead merely purports to limit a municipality's power. The Public Employee Collective Bargaining Act provides that "[a]ll matters pertaining to wages, hours, or terms and other conditions of employment *** are subject to collective bargaining between the public employer and the exclusive representative..." R.C (A). This legislative mandate abrogates a municipality's authority to establish the wages of public employees, and forces municipalities to succumb to the decisions of SERB if negotiations between a public employee's bargaining unit and the municipality do not produce an outcome agreeable to the employee bargaining unit. Accordingly, it cannot be considered a general law. It is true that in Lima v. State, this Court found that Section 34, Article II of the Ohio Constitution permitted the General Assembly to enact R.C , which placed limits on cities imposing employee residency requirements, notwithstanding the Home-Rule Amendment. But Lima v. State is distinguishable, as the Court found that the statute considered therein promoted "the comfort and general welfare of employees." 122 Ohio St. 3d 155 at 13. In counterpoint, SERB's enabling statute does not apply generally to all public employees, but only that subset who voluntarily join a public union - a special class amounting to less than three percent of Ohio employees. The City's authority to establish the terms and conditions of employment for its employees is appropriately within its home-rule powers; therefore, R.C. Chapter 4117 is unconstitutional, as it infringes upon that authority. This Court should accept this case to clarify the law in this regard. 11

14 PROPOSITION OF LAW THREE: THE STATE EMPLOYMENT RELATIONS BOARD'S INTERPRETATION OF OHIO REVISED CODE CHAPTER 4117 AS EXTENDING TO INDIVIDUAL EMPLOYEES CONSTITUTES AN INAPPROPRIATE DELEGATION OF LEGISLATIVE AUTHORITY UNDER SECTION 1, ARTICLE II OF THE OHIO CONSTITUTION. In this case, SERB and the lower courts applied SERB's own decision in Wauseon, that SERB may control the terms and conditions of employment of individual employees. Nowhere in R.C. Chapter 4117 does the General Assembly mandate that municipalities bargain collectively with single persons. SERB is an administrative agency put in place by the General Assembly to adjudicate issues involving bargaining "units" comprised of multiple employees. Through its Wauseon decision, SERB has broadened its statutory authority, and in so doing, has engaged in law-making, a non-delegable legislative function. If SERB was correct in its Wauseon decision, then the legislature has impermissibly delegated its lawmaking authority. If incorrect in its Wauseon decision, SERB should be corrected. The question of whether a body's action is legislative or administrative "is whether the action taken is one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence." Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 233 N.E.2d 500, paragraph two of the syllabus. SERB has clearly exceeded its grant of authority by extending its reach to a single police sergeant. In so doing, SERB did not merely execute existing law - it made new law. "Authority that is conferred by the General Assembly cannot be extended by the administrative agency." D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St. 3d 250, 2002-Ohio-4172, at 38, citing Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, 329 N.E.2d 693. Any doubt in the extent of the grant of an agency's power "is to be resolved not 12

15 in favor of the grant but against it." Id. at 41, quoting State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44, 47, 117 N.E. 6. Therefore, this Court should grant discretionary review to determine whether the General Assembly inappropriately granted legislative authority to SERB, or whether SERB exceeded the proper grant of authority in extending its reach into municipal relationships with individual employees. IV. CONCLUSION This Court should accept jurisdiction over the present appeal so that it can review the question of whether SERB has exceeded its statutory authority by purporting to extend its power into municipalities' employment relationships with individual employees, and further, to reexamine the continued vitality of the Rocky River IV case. 13

16 Respectfully submitted, AMER CUN^ Il^^AM CO., LPA Ja - Morrison, Jr. (# ) omas R. Houlihan (# ) 159 South Main Street, Suite 1100 Akron, OH Phone: (330) Fax: (330) Houlihangamer-law. coin Attorneys for Plaintiff/Appellant City of Munroe Falls 14

17 V. CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served via ordinary United States Mail this 11th day of February, 2013 upon: Lori Weisman ( ) Assistant Attorney General Labor Relations Section 615 West Superior Ave., 11th Floor Lori. weisman(a7ohioattorneygenenal.gov Representing SERB and Joseph M. Hegedus ( ) 92 Northwoods Blvd., Suite B-2 Columbus, Ohio jmhegegsbcglobal. net Representing OPBA -drneys for Plaintiff/Appellant City of unroe Falls SERB mem support juris revised.doc 15

18 COPY ^'7 STATE OF OHIO COUNTY OF SUMMIT CITY OF MUNROE FALLS Appellant )S j ^ E 2 O^-C 3 I 'Nf`1vTH JUDICIAL DISTRICTS ) ; ; %.s; r:r ; ^,.. ^ No v APPEAL FROM JUDGMENT ENTERED IN THE STATE EMPLOYMENT RELATIONS COURT OF COMMON PLEAS BOARD, et al. COUNTY OF SUMMIT, OHIO CASE No. CV Appellees DECISION AND JOURNAL ENTRY Dated: December 31, 2012 BELFANCE, Judge. { 1} Appellant City of Munroe Falls ("Munroe Falls") appeals the decision of the Summit County Court of Common Pleas, which affirmed the decision of the State Employment Relations Board ("SERB") and additionally concluded that Chapter 4117 of the Ohio Revised Code is constitutional. For the reasons set forth below, we affirm. 1. { 2} The facts of the instant matter are undisputed. The Ohio Patrolmen's Benevolent Association ("the OPBA") is the Board-certified bargaining representative for Munroe Falls' Police Sergeant Bargaining Unit. It was first certified as the exclusive bargaining representative for the bargaining unit consisting of full-time sergeants on August 22, 1991, and was again certified as such on April 29, In 1991, the bargaining unit contained two members; however, since 2004, it has consisted of only one member, namely Sergeant David Smith. As noted by the Summit County Court of Common Pleas, it is unclear if the unit consisted of only Munroe Falls Appendix P.1

19 'COI'Y 2 one member when it was recertified in A collective bargaining agreement ("CBA') was in effect from April 1, 2007, to March 31, The OPBA timely notified Munroe Falls that the OPBA intended to negotiate a successor agreement. In April 2010, the OPBA bargained to impasse with Munroe Falls. The OPBA thereafter requested a panel of fact finders from SERB be involved in the process. A fact finder was selected; however, the parties did not proceed to fact finding because Munroe Falls refused to recognize the Police Sergeant's Bargaining Unit as it consisted of only one member. Munroe Falls then passed a resolution determining the pay of police sergeants in contravention of the expired CBA. Subsequently, Munroe Falls refused to consider the merits of grievances filed by Sergeant Smith concerning holiday pay and health insurance premiums. { 3} On September 1, 2010, the OPBA filed an unfair labor practice ("ULP") charge against Munroe Falls which asserted that Munroe Falls violated R.C (A)(1), (A)(3), and A)(5). SERB determined that probable cause existed to believe that Munroe Falls violated R.C. ( l(A)(1) and (A)(5), but not (A)(3). {14} SERB filed a complaint and the OPBA filed a motion to intervene, which was granted. The parties submitted joint stipulations of fact and joint exhibits. Ultimately, SERB issued an opinion concluding that Munroe Falls violated providing a remedy. Munroe Falls appealed to the Summit R.C (A)(1) and (A)(5) and County Court of Common Pleas, which affirmed SERB's decision and concluded that Chapter 4117 of the Ohio Revised Code is constitutional. Munroe Falls has appealed from the lower court's decision, raising four assignments of error for our review. Some of the assignments of error will be consolidated to facilitate our review. Munroe Falls Appendix P.2

20 'co PY 3 II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN FINDING THAT SERB HAS THE POWER, MUNROE FALLS' AUTHORITY, AND JURISDICTION RE GULATE EMPLOYMENT RELATIONSHIP WITH SGT. DAVID SMITH. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN UPHOLDING SERB'S DETERMINATION THAT MUNROE FALLS VIOLATED R.C. []4117[.1 1](A)(5). ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED IN UPHOLDING SERB' S DETERMINATION THAT MUNROE FALLS VIOLATED R.C. [] (A)(1). { 5} Munroe Falls' first three assignments of error are related, and, thus, will be addressed together. Essentially, Munroe Falls asserts in its first three assignments of error that the lower court erred in upholding SERB's decision because Sergeant's Smith bargaining unit contained only one member, and, therefore, the unit abated as a matter of law. Thus, following R.C (A)(1) or (A)(5) that logic, Munroe Falls maintains that it could not have violated by failing to negotiate a CBA with the exclusive representative of a bargaining unit consisting of only one employee. Munroe Falls does not appear to contest the factual allegations against it, i.e. that it failed to comply with R.C ; instead, it asserts essentially that R.C no longer applied to regulate its interactions with OPBA with respect to the Police Sergeant Bargaining Unit. Despite the manner in which Munroe Falls couches its argument, the real question before this court is did the lower court abuse its discretion in affirming SERB's decision which concluded that Munroe Falls violated R.C (A)(1) and (A)(5). See State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn., 66 Ohio St.3d 485, (1993). {156} In Adena, the Supreme Court stated that: Munroe Falls Appendix P.3

21 i COPY 4 different standards of review are to be applied by a common pleas court and by a court of appeals when reviewing an order of SERB in a ULP case. When a common pleas court reviews a SERB order, the court must determine whether the order is supported by substantial evidence in the record. This standard of review for a common pleas court is supplied by R.C (D), which provides that [t]he findings of the board [SERB] as to the facts, if supported by substantial evidence, on the record as a whole, are conclusive. An appellate court, on the other hand, plays a more limited role than a trial court in reviewing the same SERB order. The role of the appellate court is to determine whether the trial court has abused its discretion. The appellate court must affirm the judgment of the trial court if no abuse of discretion occurred. (Internal quotations and citations omitted.) Id. at Further, "[c]ourts must afford due deference to the State Employment Relations Board's interpretation of R.C. Chapter 4117." Lorain City School Dist. Bd. of Ed. v. State Emp. Relations Bd., 40 Ohio St.3d 257 (1988), paragraph two of the syllabus. This is so, because "[t]he 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." State Emp. Relations Bd. v. Miami Univ., 71 Ohio St.3d 351, 353 (1994). {17} Mindful of the standards above, we cannot say that the trial court abused its discretion in upholding SERB's decision concluding that Munroe Falls conunitted ULPs. { 8} SERB determined that Munroe Falls committed ULPs by violating R.C (A)(1) and (A)(5). The relevant statute provides that: [i]t 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 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[, or to] * * * Munroe Falls Appendix P.4

22 CO PY 5 (5) Refuse to bargain collectively with the representative of his employees recognized as the exclusive representative or certified pursuant to Chapter of the Revised Code[.] R.C (A)(1), (A)(5). It has been stipulated that Munroe Falls is a public employer and that OPBA is the Board-certified bargaining representative for Munroe Falls' Police Sergeant Bargaining Unit, of which Sergeant Smith is the sole member. It likewise appears undisputed that Munroe Falls refused to bargain to ultimate impasse with the OPBA on behalf of the Police Sergeant Bargaining Unit. Thus, on the face of the matter, it seems the trial court's affirmance of SERB's decision is not arbitrary or unreasonable. {19} Moreover, we are not persuaded by Munroe Falls' arguments that it could not collectively bargain with OPBA because OPBA only represented a single-member unit and, thus, there was no "collective" with which to bargain. Under the statute, "[t]o bargain collectively" means to perform the mutual obligation of the public employer, by its representatives, and the representatives of its employees to negotiate in good faith at reasonable times and places with respect to wages, hours, terms, and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement, with the intention of reaching an agreement, or to resolve questions arising under the agreement. "To bargain collectively" includes executing a written contract incorporating the terms of any agreement reached. The obligation to bargain collectively does not mean that either party is compelled to agree to a proposal nor does it require the making of a concession. R.C (G). While it is true that the statute refers to "representatives" and "employees" in the plural, it is a well understood rule of statutory construction that, unless there is "evidence which adequately demonstrates that such a construction is out of context with the remaining language of that statute or its related provisions," then, pursuant to R.C. 1.43(A), 666(t)he singular includes the plural, and the plural includes the singular."' (Footnotes omitted.) Wingate v. Hordge, 60 Ohio St.2d 55, 58 (1979). We see nothing in the statute which would require the Munroe Falls Appendix P.5

23 COPY 6 conclusion that "[t]o bargain collectively" requires that the representative represent more than one employee. { 10} In addition, Munroe Falls has not pointed us to any Ohio law indicating that a single-member unit would abate as a matter of law. SERB has previously concluded that singlemember units can be appropriate units. See In re Wauseon, Ohio SERB , 1988 WL (Sep. 29, 1988). In Wauseon, SERB concluded that: Id. [a] bargaining unit comprised at present of just one police sergeant will be approved in light of the facts that (1) RC (D)(6) forbids approval of a unit that puts sergeants together with police below that rank, (2) RC (D)(6) forbids the inclusion of police in a unit with other police department employees who are not police, (3) no harm to department structure or efficiency has been shown, and (4) disapproval of the sergeant's unit would have the effect of denying him representation; since Ohio's statute is unique among the labor laws of the United States in forbidding sergeants to be in the same unit with lower ranks, the fact that single-employee bargaining units are not permitted by most other states or the national labor relations board is not persuasive. at paragraph two of the syllabus. In light of the entirety of Ohio's statutory scheme we cannot saythe above analysis, which was relied upon by the lower court, is unreasonable. {111} Notably, not only does the National Labor Relations Act not forbid sergeants from being in the same units as officers of lower rank, see id., the National Labor Relations Act does not define "to bargain collectively" in its definitions section, whereas Chapter 4117 does. R.C (G). Thus, SERB's and the lower court's decision not Compare 29 U.S.C. 152 with to rely on the National Labor Relations Board's and other states' precedent on the topic is not unreasonable. { 12} Further, in a different context, the Ohio Supreme Court has noted that: [t]he duty to bargain with an exclusive representative continues so long as the representative maintains its exclusive status. Once certified, the representative's exclusive status is maintained until the representative is displaced in accordance with the procedures set forth in R.C Displacement occurs following a four step process: (1) a decertification or rival union petition is filed; (2) SERB Munroe Falls Appendix P.6

24 -COPY 7 investigates the petition, and if it finds reasonable cause to believe that a question of representation exists, holds a hearing; (3) if, following the hearing, SERB finds that a question of representation does exist, it must direct an election; and (4) SERB must certify the results of the election. Miami Univ., 71 Ohio St.3d at 354. It was stipulated that the OPBA is the Board-certified bargaining representative for Munroe Falls' Police Sergeant Bargaining Unit. There appears to be no dispute that Munroe Falls' conduct would constitute ULPs if Munroe Falls was required to bargain to ultimate impasse with the OPBA. Both SERB and the lower court found Munroe Falls' defenses to its failure to do so to be unpersuasive. We cannot say that that conclusion is arbitrary or unreasonable. Accordingly, Munroe Falls' first three assignments of error are overruled. ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED IN FAILING TO FIND THAT R.C. CHAPTER 4117 VIOLATES THE OHIO CONSTITUTION. { 13} Munroe Falls asserts in its fourth assignment of error that the lower court erred in concluding that R.C. Chapter 4117 does not violate the Ohio Constitution. We do not agree. { 14} We note that Munroe Falls does not point to a particular section in R.C. Chapter 4117 that it believes is unconstitutional; instead, it broadly asserts the entire Chapter is unconstitutional. We are mindful that "[s]tatutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision." (Internal quotations and citations omitted.) Nitchman v. Nationwide Mut. Fire Ins. Co., 146 Ohio App.3d 315, 317 (9th Dist.2001). {T15} Essentially Munroe Falls asserts that R.C. Chapter 4117 violates Section 3, Article XVIII of the Ohio Constitution and is an improper delegation of legislative authority. Munroe Falls Appendix P.7

25 .copy 8 {116} In Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1 (1989), the Ohio Supreme Court held that: the Ohio Public Employees' Collective Bargaining Act, R.C. Chapter 4117, and specifically R.C (I), are constitutional as they fall within the General Assembly's authority to enact employee welfare legislation pursuant to Section 34, Article II of the Ohio Constitution. Section 3, Article XVIII of the Ohio Constitution, the home-rule provision, may not be interposed to impair, limit or negate the Act. Id. at paragraph two of the syllabus. {1[17} Rocky River has not been overruled, and, thus, this Court is bound to apply the law as set forth by the Supreme Court of Ohio. As the Supreme Court has already determined that Chapter 4117 is constitutional and has not reversed its position on this issue, Munroe Falls' argument concerning Section 3, Article XVIII of the Ohio Constitution is without merit. See id. { 18} With respect to Munroe Falls' assertion that R.C. Chapter 4117 represents an improper delegation of legislative authority, we are likewise not persuaded. Munroe Falls' argument in the trial court was brief and limited. { 19} Also in Rocky River, the Supreme Court discussed whether R.C (I) was an improper delegation of legislative authority. See Rocky River, 43 Ohio St.3d at 11. In concluding that it was not, the Supreme Court stated, that: [a] statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively. (Internal quotations and citations omitted.) Id. Absent an assertion that a specific provision of R.C. Chapter 4117 represents an unconstitutional delegation of legislative authority and in light of the fact that the Supreme Court has specifically found R.C (I) not to be unconstitutional on those grounds, we cannot say that the entirety of Munroe Falls Appendix P.8

26 -COPY 9 R.C. Chapter 4117 represents an unconstitutional delegation of legislative authority. See id at 11-12, paragraph one of the syllabus. See also Cardone v. Cardone, 9th Dist. No , 1998 WL , *8 (May 6, 1998) ("If an argument exists that can support this assignment of error, it is not this court's duty to root it out."). Accordingly, Munroe Falls' fourth assignment of error is overruled. III. {120} In light of the foregoing, we overrule Munroe Falls' assignments of error and affirm the judgment of the Summit County Court of Common Pleas. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Munroe Falls Appendix P.9

27 -COPY 10 Costs taxed to Appellant. EVE V. BELFANCE FOR THE COURT WHITMORE, P. J. CARR, J. CONCUR. APPEARANCES: JACK MORRISON, JR. and THOMAS R. HOULIHAN, Attorneys at Law, for Appellant. LORI WEISMAN, Attorney at Law, for Appellee. JOSEPH M. HEGEDUS, Attorney at Law, for Appellee. Munroe Falls Appendix P.10