STATE OF INDIANA ) IN THE ALLEN SUPERIOR/CIRCUIT COURT )ss: COUNTY OF ALLEN ) CAUSE NO.

STATE OF INDIANA ) IN THE ALLEN SUPERIOR/CIRCUIT COURT )ss: COUNTY OF ALLEN ) CAUSE NO. INTERNATIONAL BROTHERHOOD ) OF ELECTRICAL WORKERS, ) LOCAL 723, ) ) Plaintiff, ) ) v. ) ) CITY OF FORT WAYNE; and ) TOM HENRY, in his official capacity ) as Mayor Fort Wayne; and AL MOLL, in ) his official capacity as Director of the ) City of Fort Wayne s Parks & Recreation ) Department; and RICHARD SAMEK, ) PAMELA KELLY, CHERI BECKER, and ) WILLIAM ZIELKE, in their official capacity ) as members of the Board of Park ) Commissioners, ) ) Defendants. ) VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF, AND DAMAGES COMES NOW the Plaintiff, the International Brotherhood of Electrical Workers, Local 723 ( Local 723"), and for its Verified Complaint for Declaratory Judgment, Injunctive Relief, and Damages against the Defendants, the City of Fort Wayne (the City ); Tom Henry, in his official capacity as Mayor of the City of Fort Wayne ( Mayor Henry ); Al Moll, in his official capacity as Director of the City of Fort Wayne s Parks and Recreation Department ( Director Moll ); and Richard Samek, Pamela Kelly, Cheri -1-

Becker, and William Zielke, in their official capacity as members of the Board of Park Commissioners ( Parks Commissioners ) (collectively the Defendants ), hereby states as follows: I. The Parties 1. Local 723 is a labor organization with its principal headquarters at 5401 Keystone Drive, Fort Wayne, Indiana 46825. 2. Bruce L. Getts is the Business Manager/Financial Secretary of Local 723 and its highest ranking officer. 3. Local 723 is the duly-authorized exclusive collective bargaining agent of City s bargaining unit employees in the Department of Parks and Recreation with respect to their rates of pay, benefits, hours, and other conditions of employment. 4. The City is a municipality classified as a second-class city pursuant to I.C. 36-4-1-1(a) with its principal offices located at Citizens Square, 200 East Berry Street, Suite 425, Fort Wayne, IN 46802. 5. Tom Henry is the mayor of the City and, as such is the City s chief executive officer pursuant to I.C. 36-4-5-2, with the powers and duties conferred by I.C. 36-4-5-3. 6. Al Moll is the Executive Director of the City s Parks and Recreation Department, which is established pursuant to 97.01 of the City s Code of Ordinances, and which has its principal offices at 705 East State Boulevard, Fort Wayne, IN 46805. -2-

7. The Parks Commissioners pursuant to City Ordinance 97.02 have control and direction over the Department of Parks and Recreation. II. Factual Allegations 8. The City and Local 723 are parties to a collective bargaining agreement ( CBA ) governing the bargaining unit members rate of pay, hours, and other terms and conditions of employment. (Exhibit A). 9. The CBA had an initial duration of two three years from January 1, 2010 to December 31, 2012. 10. The CBA was extended with a pay increase by mutual agreement of the parties for a period of January 1, 2013 thru December 31, 2013. 11. The CBA provides that it shall automatically renew itself for periods of one (1) year, dating to and from the anniversary date upon which it might first have been terminated, unless either party gives the other party not less than sixty (60) days notice by registered mail, before any termination date, of its intention to change, alter, modify, or cancel this Agreement. (Exhibit A; Article I, Section 2). 12. As neither party gave notice of its intention to change, alter, modify, or cancel the CBA by registered mail sixty (60) days prior to December 31, 2012 2013, the CBA automatically renewed and was in full force and effect during all of calendar year 2013 2014. 13. On June 11, 2013, the City s Common Council passed General Ordinance No. ( G.O. ) 6-7-13 (Exhibit B) by a vote of 8-0. It added 36.04 and 36.05 to Chapter -3-

36 of the City s Ordinances, which made numerous changes to City policies regarding the receipt of paid sick days, accrual of vacation days, payment and use of sick and vacation -4-

days, and short-term disability compensation. It provided that the changes were to go into effect on January 1, 2014 for all employees except Police and Firefighters. (Exhibit B; 36.05(A)). Deputy Mayor Mark D. Becker signed G.O. 6-7-13 on June 17, 2013. 14. On June 11, 2013, the City s Common Council passed G.O. 6-8-13 (Exhibit C) by a vote of 7-0, which amended 40.01 of the Collective Bargaining Ordinance, 40.01 to 40.34, to prohibit seasonal employees from being represented by a union. It states that it shall be in full force and effect from and after its passage and any and all necessary approval by the Mayor. Deputy Mayor Becker also signed G.O. 6-8-13 on June 17, 2013. 15. On June 25, 2013, the City s Common Council passed G.O. 6-15-13 (Exhibit D) by a vote of 6-2, which amended the Collective Bargaining Ordinance by adding a new section, 40.13, titled Prohibition on Provisions Regarding Health Insurance. This ordinance prohibits the City and any of its subordinate governmental units from entering into any agreements or contracts, including collective bargaining agreements, that establish the terms and conditions of eligibility or coverage for spousal and/or retiree health insurance. The ordinance applies to collective bargaining agreements entered into after the effective date of this ordinance. The ordinance is to be in full force and effect from and after its passage and any and all necessary approval by the Mayor. The Mayor signed G.O. 6-15-13 on June 27, 2013. 16. In July 2013, the City unilaterally and without the Union s agreement or -5-

acquiescence exempted seasonal employees from the CBA, ceased collecting Union dues from those employees who had signed dues check-off authorizations, and ceased remitting those dues to Local 723 pursuant to the Union security provisions of the CBA. (See Exhibit A, Article II). 17. At a September 25, 2013, meeting concerning an unrelated matter, City Attorney Carol Helton hand-delivered a letter to Bruce Getts (Exhibit E), purporting to modify/cancel the agreement [CBA] effective upon its expiration on December 31, 2013. 18. The September 25, 2013, letter states that it was delivered to Local 723 VIA REGISTERED/CERTIFIED MAIL AND HAND DELIVERY. However, in fact it was never delivered to Local 723 by registered or certified mail. 19. According to the September 25, 2013 letter, the City s stated reason for attempting to terminate the CBA was to amend it to include changes necessary to comply with recent changes to City ordinances that become effective on January 1, 2014, as well as wages, hours, and working conditions. (Exhibit F). 20. At the September 25, 2013, meeting, Local 723 offered to meet for negotiations on November 12, 13, 19, and 21, and December 16 and 18, 2013. The parties scheduled meetings on all of those dates. The City later notified Local 723 that it was unable to meet on November 13, but confirmed its availability on the remaining dates and agreed to meet with Local 723 on each one. -6-

21. On October 30, 2013, the City s Labor Relations Manager, Pete Demitsas, informed Local 723 via email that the November 12, 2013, meeting was cancelled and would need to be rescheduled at a later date. (Exhibit G). 22. The parties met on November 19, 2013. Local 723 presented its contract proposals to the City, but the City presented Local 723 with none. 23. Demitsas cancelled the meeting scheduled for November 21, 2013 without explanation. (Exhibit H). 24. On November 27, 2014, Demitsas sent an email to Getts, attached to which was a letter authored by Attorney Helton dated November 25, 2013 (Exhibit I), confirming the City s earlier correspondence regarding its intent to terminate the current collective bargaining agreement upon its expiration on December 31, 2013. The letter also stated that the City intended to apply the provisions of the ordinances becoming effective on January 1, 2014 to Local 723's bargaining unit members on that date, and that if a new labor agreement was not reached prior to December 31, 2013, the City would continue to apply the terms and conditions of the [CBA] to bargaining unit employees except for those terms and conditions that are inconsistent with the enclosed ordinances. In those matters, the terms of the ordinances will control. 25. The November 25, 2013, letter states that it was hand-delivered on November 25, 2013 to Local 723. In fact, it was not hand-delivered to Local 723, which received it on November 27, 2013, via email. -7-

26. On December 5, 2013, Demitsas cancelled the meetings scheduled for December 16 and 18, 2013. He claimed that the meetings were being cancelled [d]ue to scheduling conflicts, and will need to be rescheduled. (Exhibits J and K). 27. Other than scheduling conflicts, the City never provided Local 723 with any other reason for its cancellation of the scheduled negotiation meetings. 28. The City never contacted Local 723 to reschedule any of the meetings it had cancelled. 29. Since December 31, 2013, the City has treated the CBA as terminated. III. Causes of Action Count 1: Breach of Contract 30. Local 723 realleges and incorporates by reference paragraphs 1 through 28 as if fully restated herein. 31. The CBA is a valid and binding contract under Indiana law, and was in full force and effect during all of calendar year 2013. 32. The CBA, Article I, Section 2, provides: This Agreement shall remain in full force and effect from January 1, 2010 thru December 31, 2012, and thereafter shall automatically renew itself for periods of one (1) year dating to and from the anniversary of the day upon which it might first have been terminated, unless either party gives the other party not less than sixty (60) days notice by registered mail, before any termination date, of its intention to change, alter, modify, or cancel this Agreement. 33. The City did not notify Local 723 of its intent to terminate the CBA by -8-

registered mail sixty (60) days prior to December 31, 2013. 34. The City s failure to notify the Union via registered mail of its intent to terminate the CBA sixty days prior to December 31, 2013, caused it to automatically renew for a one year period through and including December 31, 2014. 35. The CBA is in full force and effect from January 1, 2014 until December 31, 2014. 36. The City s treatment of the CBA as terminated and its refusal to abide by its terms constitutes a breach of the CBA. 37. Local 723 and its members have suffered and continue to suffer harm as a result of the City s breach of the CBA by refusing to honor and comply with the provisions of the CBA. Count 2: Breach of Contract 38. Local 723 realleges and incorporates by reference paragraphs 1 through 36 as if fully restated herein. 39. The CBA provides that seasonal employees, except for golf course and zoo employees, shall be considered part of the bargaining unit, and also provides that the City will, upon written authorization of the bargaining unit member, deduct Union dues and/or initiation fees from the bargaining unit members pay and remit those dues to Local 723. 40. The City s unilateral exclusion of seasonal employees from the bargaining -9-

unit during the CBA s term, and its failure to collect and remit their dues to Local 723, constitutes a breach of the CBA. 41. Local 723 and its members have suffered damages as a result of the City s breach of the CBA. Count 3: Violation of Article I, Section 24 of the Indiana Constitution 42. Local 723 realleges and incorporates by reference paragraphs 1 through 40 as if fully restated herein.. 43. The City s application of G.O. 6-8-13 (seasonal employees), G.O. 6-7-13 (sick days, vacation days, and short term disability), and G.O. 6-15-13 (spousal and retiree health insurance), to the extent they are contrary to the terms of the existing CBA, violates Article I, Section 24, of the Indiana Constitution, which provides, No ex post facto law, or law impairing the obligation of contracts, shall ever be passed. 44. Local 723 and its members have suffered and continue to suffer harm and damages as a result of the City s unconstitutional ex post facto application of these ordinances. Count 4: Violation of 40.06 of the Collective Bargaining Ordinance 45. Local 723 realleges and incorporates by reference paragraphs 1 through 43 as if fully restated herein. 46. 40.06 of the Collective Bargaining Ordinance provides, The city shall, upon written receipt of authorization from a city employee, deduct from the pay of such -10-

employee any fee designated or certified by the appropriate officer of the employee's labor organization and remit those fees or fee to the employee s organization. 47. By exempting seasonal employees from the bargaining unit and failing to collect dues from those members who had signed dues check-off authorizations and remit those dues to Local 723, the City has violated 40.06 of the Collective Bargaining Ordinance. 48. Local 723 and its members have suffered and continue to suffer damages by the City s failure to collect and remit these dues to Local 723. Count 5: Violation 40.08 of the Collective Bargaining Ordinance 49. Local 723 realleges and incorporates by reference paragraphs 1 through 47 as if fully restated herein. 50. 40.08(A), Step 1, of the City s Collective Bargaining Ordinance provides, To commence collective bargaining, the parties shall follow the terms and conditions of their labor agreement with respect to notification regarding the intent and desire to negotiate. 51. By failing to notify Local 723 of its intent to terminate the CBA and negotiate amendments to the CBA in a manner consistent with its terms, the City has violated 40.08(A), Step 1 of the Collective Bargaining Ordinance. 52. Local 723 and its members have suffered and continue to suffer harm as a result of the City s failure to abide by the terms of the Collective Bargaining Ordinance -11-

with respect to the commencement of collective bargaining. Count 6: Violation of 40.08 and 40.09 the Collective Bargaining Ordinance 53. Local 723 realleges and incorporates by reference paragraphs 1 through 51 as if fully restated herein. 54. Even assuming, arguendo, that the City s notification to Local 723 of its intent to terminate the CBA and negotiate was effective to terminate the CBA, the Collective Bargaining Ordinance, 40.08 and 40.09, provides for the following procedure upon such notification: The parties shall attend and collectively bargain in good faith at all negotiation meetings that may be required under each such collective bargaining agreement. This requirement to initially meet and negotiate shall include three mandatory collective bargaining sessions between the parties, such meetings all to take place within 30 calendar days after initial notification as provided by one party to the other concerning the commencement of collective bargaining; Step 2: If after exhaustion of step 1 above, the parties have not reached an agreement, the parties will still be obligated to bargain in good faith. In that regard, the parties shall be required to have at least two bargaining sessions within a 14 calendar-day period referenced in step 1 above; Step 3: If an agreement has not been reached after steps 1 and 2 above, then the parties shall continue to confer and meet for purposes of collective bargaining and the parties shall utilize a three-member mediation committee. The three-member committee shall be appointed as follows: a representative designated by the Mayor, such representative not previously involved in this collective bargaining process with the city and the union in question; a representative designated by the union, such representative not previously involved in the collective bargaining process with the city and the union in question; and a member of the Common Council (as designated by the President of the Common Council) not previously involved in the collective bargaining process with the city and the union in question. -12-

Members of the committee shall serve without compensation. The three-member committee shall perform mediation functions between the parties and shall be utilized to define the differences between the parties and their respective positions. The three-member committee shall have the right to meet with either side alone or with both sides and further require meetings between the parties for purposes of collective bargaining. Such mediation process under this step 3 shall occur for a period of 30 calendar days. (B) The time limits and other requirements as referenced in steps 1 and 2 may be altered or changed by mutual agreement of the city and the appropriate labor organization. The requirements to bargain and negotiate as herein referenced in this subsection shall not impose upon either side the duty to bargain over what are part and parcel of a collective bargaining agreement has not expired. That is, certain terms and conditions contained in a collective bargaining agreement will have a duration of greater than one year. If the term for such issues has not elapsed there shall be no requirement to bargain over same. 40.09 FURTHER MEDIATION After completion of steps 1, 2 and 3 in 40.08(A) and an impasse still exists, both parties are urged to continue collective bargaining in hopes of reaching a settlement. In that regard, the parties shall, within 10 days from completion of step 3 in 40.08(A), once again meet and confer. Such meeting shall include in attendance a designated representative of the Mayor and a designated international staff representative of the union who will assist the representatives of the city and the union in hopes of reaching a settlement. If a settlement cannot be reached, then either the city or union shall have the right to request the services of a Mediator through the Federal Mediation and Conciliation Service. The Mediator's session shall be scheduled as soon as a Mediator is available. In addition, throughout the process, the labor agree[ment] shall remain in full force and effect. (Emphasis added). 55. The City s participation in only one bargaining session, during which it offered no proposals, and its subsequent cancellation of the remainder of the scheduled -13-

bargaining sessions, violated the duty to bargain in good faith as required by the Collective Bargaining Ordinance. 56. The City s treatment of the CBA as cancelled prior to engaging in the required process of good faith bargaining as outlined in the Collective Bargaining Ordinance constitutes a violation of the Collective Bargaining Ordinance. 57. Local 723 and its members have suffered and continue to suffer harm as a result of the City s failure to bargain in good faith and its treatment of the CBA as cancelled prior to the conclusion of the bargaining process. WHEREFORE, Local 723 respectfully requests that this Honorable Court: a. Enter a Declaratory Judgment that the CBA remains in full force and effect for the calendar year 2014 pursuant to Article 1, Section 2 of the CBA, because of the City s failure to properly and timely provide notice of its desire to terminate said CBA. b. Enter a Declaratory Judgment that the ex post facto application of G.O. No. 6-8-13, G.O. No. 6-7-13, and G.O. No. 6-15-13 in a manner contradictory to the terms of the existing CBA violates Article 1, Section 24 of the Indiana Constitution. c. Preliminarily and permanently enjoin the Defendants from acting in a manner inconsistent with the terms of the CBA until such time as it has been properly terminated and a new labor agreement has been reached consistent with the Collective Bargaining Ordinance. d. In the alternative, and only in the event the Court were to find that the CBA -14-

was properly terminated pursuant to its terms: (1) enter a Declaratory Judgment that the City has failed to bargain in good faith over amendments to the CBA as outlined in the Collective Bargaining Ordinance; (2) enter a preliminary and permanent injunction ordering the City to comply with 40.08 and 40.09 of the Collective Bargaining Ordinance, and ordering Defendants until such time as a successor agreement is reached to implement all terms and conditions of the existing CBA to Local 723's members; d. Award damages to Local 723 in an amount to be determined at trial; e. Award Local 723 the costs of this action; and f. Award Local 723 such other or further relief that this Court deems just and proper. Respectfully Submitted, FILLENWARTH DENNERLINE GROTH & TOWE, LLP, William R. Groth, #7325-49 David T. Vlink, #30182-45 Attorneys for Local 723 429 E. Vermont Street, Suite 200 Indianapolis, IN 46220 Phone: 317-353-9363 Fax: 317-351-7232 E-Mail: wgroth@fdgtlaborlaw.com -15-

Verification I affirm under the penalties of perjury that the foregoing representations are true to the best of my knowledge. Bruce L. Getts Business Manager/Financial Secretary, Local 723-16-