State v. State Emp't Relations Bd.
| Decision Date | 13 December 2021 |
| Docket Number | 21 MA 0023 |
| Citation | 182 N.E.3d 436 |
| Parties | State of Ohio, City of YOUNGSTOWN, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees. |
| Court | Ohio Court of Appeals |
Atty. Jeffrey S. Moliterno, Assistant Law Director, and Atty. Daniel P. Dascenzo, Deputy Law Director, City of Youngstown, 26 South Phelps Street, 4th Floor, Youngstown, Ohio 44503, for Appellant.
Atty. David Yost, Ohio Attorney General, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215, Atty. Lisa A. Reid, and Atty. Lori J. Friedman, Principal Assistant Attorney General, Executive Agencies Section-Labor Relations Unit, West Superior Avenue 11th Floor, Cleveland, Ohio 44113, for Appellee, State Employment Relations Board. Atty. Ryan J. Lemmerbrock, and Atty. Brooks W. Boron, Muskovitz & Lemmerbrock, LLC, 1621 Euclid Avenue, Suite 1750, Cleveland, Ohio 44115, for Appellee, Youngstown Professional Firefighters.
BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
OPINION AND JUDGMENT ENTRY
D'Apolito, J. {¶1} Appellant, City of Youngstown ("City"), appeals a judgment of the Mahoning County Court of Common Pleas affirming an Order by Appellee, State Employment Relations Board ("SERB"). This R.C. 4117.13(D) appeal stems from the filing of an unfair labor practice charge by Appellee, Youngstown Professional Firefighters, IAFF Local 312 ("Union") against City. Union alleged, and SERB and the trial court found, that City violated R.C. 4117.11(A)(1) by threatening to eliminate and subsequently eliminating three Battalion Chief positions in retaliation against Union for pursuing a radio safety equipment grievance to arbitration. In this appeal, City asserts the trial court abused its discretion in upholding portions of SERB's Order and in failing to consider SERB's improper reliance on confidential mediation communications. For the reasons stated, SERB properly found that City committed an unfair labor practice by violating R.C. 4117.11(A)(1) and the trial court did not abuse its discretion in affirming SERB's Order. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} City is a municipality and political subdivision of the State of Ohio. City is a "public employer" as defined by R.C. 4117.01(B). Union is an "employee organization" as defined by R.C. 4117.01(D). SERB is the State agency charged with the enforcement of R.C. Chapter 4117. Union is the exclusive bargaining representative for all sworn firefighters employed by City except for the Fire Chief. City and Union are parties to a collective bargaining agreement ("CBA") effective from June 1, 2017 through May 31, 2020. The CBA contains a grievance and arbitration process that culminates in final and binding arbitration.
{¶3} Article 9, Section 3 of the CBA requires City to furnish and maintain in safe condition all tools, facilities, vehicles, and supplies and equipment required to safely carry out the duties of each Union member. In 2017, City underwent changes to the portable radio program used by the firefighters. Union President Charles Smith and Fire Chief Barry Finley testified at a later SERB record hearing regarding significant and potentially dangerous safety issues caused by the radio equipment. Captain Tim Frease served as a liaison between City and the Fire Department. Frease obtained quotes and informed City it would cost approximately $285,000 to fix the radio equipment. City did not fix the radios.
{¶4} On January 9, 2019, Union filed Grievance 19-001 alleging City violated the CBA by failing to provide necessary turnout gear and radio equipment to the firefighters. On January 17, 2019, President Smith, Captain Tracey Wright (former Union Secretary), Chief Finley, and Deputy Law Director Dan Dascenzo met to discuss the grievance. The meeting was an open discussion concerning the problems with the radio system. City suggested that Union hold the grievance in abeyance pending finalization of City's 2019 budget. Union believed City was going to fund both the turnout gear and the radio equipment in the 2019 budget. During that meeting, City did not indicate that it may be necessary to eliminate Battalion Chief positions in order to purchase the radio equipment.
{¶5} On February 7, 2019, Chief Finley advised City Council that he had added $250,000 in the Fire Department's budget for radio equipment. However, City's Interim Finance Director, Kyle Miasek, later determined that the radio equipment would not be included in the final 2019 budget. City's finalized 2019 budget for the Fire Department maintained all six Battalion Chief positions through the remainder of 2019.
{¶6} On April 15, 2019, City informed Union that it planned to budget for the necessary turnout gear but not for the radio equipment. City's estimated cost for the radio equipment was approximately $285,000. CPA Mary Schultz testified at the SERB record hearing that City had sufficient funds to pay for the $285,000 radio upgrade. Schultz indicated City was able to purchase the radio equipment without eliminating any Battalion Chief positions.
{¶7} After no resolution, Union informed City it would be processing Grievance 19-001 to a Step 3 hearing. Union requested a copy of City's 2019 budget, but City never complied. On April 19, 2019, City issued its Step 3 response to the grievance without holding a Step 3 hearing. City did not address the merits of the grievance. Rather, City claimed for the first time that the grievance was untimely. On April 25, 2019, Union informed City it would be advancing the grievance to arbitration.
{¶8} During this time period, other disputes arose between City and Union. The relationship between the parties deteriorated and became contentious. On July 12, 2019, Union and City met to discuss labor management issues. Assistant Law Director Jeffrey Moliterno indicated that Chief Finley had a plan to pay for the radio equipment, contingent upon Union agreeing to eliminate two Battalion Chief positions though attrition.1 Union rejected City's offer. Union believed City's proposal violated its collective bargaining rights and that eliminating the positions would create new safety issues. City never indicated at the meeting that the elimination of the Battalion Chief positions was to be part of a restructuring effort or reorganization plan for the Fire Department. Rather, as revealed, City's sole stated reason for eliminating the positions was to pay for the radio equipment.
{¶9} On July 25, 2019, City Council's Safety Committee held a public meeting. Chief Finley announced City's plan to eliminate two Battalion Chief positions in order to fund the radio equipment expenditures.
Chief Finley claimed that the reduction was not a safety issue. City did not provide Union with documentation explaining its reasoning or with financial information indicating its need to reduce the Battalion Chief positions.
{¶10} At an August 5, 2019 public meeting, Chief Finley now acknowledged that reducing the Battalion Chief positions was a safety issue. Chief Finley explained that he was done conceding to cuts and that he would no longer be eliminating the two Battalion Chief positions. On August 15, 2019, President Smith and Captain Wright met with Chief Finley and the Mayor to discuss how to finance the radio equipment. City again reversed its position and the elimination of the Battalion Chief positions was back on the table.
{¶11} On September 3, 2019, Union filed an unfair labor practice charge against City alleging violations of R.C. 4117.11(A)(1), (2), (3), and (8). On October 15, 2019, a labor management meeting was held between President Smith, Captain Wright, Chief Finley, Attorney Moliterno, and Law Director Jeff Limbian. City informed Union it would be eliminating three Battalion Chief positions, instead of the originally planned two positions. City told Union for the first time that the elimination of the positions was due to a restructuring plan.2
{¶12} On October 31, 2019, SERB determined that probable cause existed to believe City violated R.C. 4117.11(A)(1) and (2) but not (A)(3) and (8), authorized the issuance of a complaint, and directed the matter to mediation. On November 12, 2019, Union learned that City planned to pass legislation to eliminate the three Battalion Chief positions. The next day, City Council passed Ordinance No. 19-336 to amend Section 1 of Ordinance 19-47, to abolish three Battalion Chief positions by attrition. That Ordinance was later determined to be an unlawful retaliation against Union.
{¶13} Following an unsuccessful mediation session, a complaint was issued and the matter was directed to a hearing which commenced on February 12, 2020 before an Administrative Law Judge ("ALJ"). During the SERB record hearing, City confirmed that it abolished the Battalion Chief positions not because it lacked the ability to pay, but rather because it had competing priorities, a limited pool of funds, and faced a challenging fiscal environment. The parties submitted post-hearing briefs to the ALJ on April 10, 2020. One week later, the ALJ issued his Proposed Order recommending that SERB find that City violated R.C. 4117.11(A)(1). The ALJ found that City had the financial ability to have paid a part of or all of the approximate $285,000 needed to upgrade the Fire Department's radio issue. The ALJ rejected City's reorganization defense.
{¶14} On May 6, 2020, City filed exceptions to the Proposed Order. On May 14, 2020, Union filed a response. Four days later, the Ohio Attorney General's Office filed a response.
{¶15} On June 11, 2020, SERB adopted the ALJ's Proposed Order concluding that City violated R.C. 4117.11(A)(1), namely:
[T]hat [City's] comments and actions interfered with [Union's] ability to carry out its collective bargaining rights. It would have been almost impossible for Union leadership to have ignored or cast aside the comments made by [City], as frequent, stringent, and unequivocal as they...
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