Toledo Police Patrolman's Assn., Local 10, IUPA, AFL-CIO-CLC v. Toledo

• Decision Date: 26 June 1998
• Docket Number: AFL-CIO-CL,No. L-97-1392,A,L-97-1392
• Citation: 713 N.E.2d 78,127 Ohio App.3d 450
• Parties: , 158 L.R.R.M. (BNA) 3068 TOLEDO POLICE PATROLMAN'S ASSOCIATION, LOCAL 10, IUPA,ppellees, v. CITY OF TOLEDO et al., Appellants. * Sixth District, Lucas County
• Court: Ohio Court of Appeals

Page 450

127 Ohio App.3d 450

713 N.E.2d 78, 158 L.R.R.M. (BNA) 3068

TOLEDO POLICE PATROLMAN'S ASSOCIATION, LOCAL 10, IUPA, AFL-CIO-CLC, Appellees, v. CITY OF TOLEDO et al., Appellants. ^*

No. L-97-1392.

Court of Appeals of Ohio,

Sixth District, Lucas County.

Decided June 26, 1998.

Ted Iorio and Christine Reardon, Toledo, for appellees.

James G. Burkhardt, Toledo, for appellants.

MELVIN L. RESNICK, Judge.

Appellants, Carleton S. Finkbeiner, Mayor of the city of Toledo, the Toledo Police Department, and Gerald Galvin, Director of the Toledo Police Department, also known as Police Chief Galvin ("city"), come before the court appealing a judgment of the Lucas County Court of Common Pleas. In its judgment, the trial court declared that the grievance filed by appellee, the Toledo Police Patrolman's Association, Local 10, IUPA, AFL-CIO-CLC ("TPPA"), was subject to arbitration pursuant to the collective bargaining agreement between the city and the TPPA. The court also issued a preliminary and permanent injunction enjoining the city from implementing a proposed plan to use, on the day shift, one-officer police patrol vehicles throughout the city of Toledo.

The city appeals that judgment and asserts that the following errors occurred in the trial court proceedings:

"The court erred in finding that the appellee's claim was a grievance under the terms of the contract, and that therefore the court had jurisdiction.

"The court erred in finding that the appellee's claim was a grievance under the terms of the contract, and that therefore the dispute was subject to arbitration.

"The court erred in granting the injunction enjoining its proposed expansion of one-officer patrol units prior to arbitration of the grievance."

TPPA is the exclusive representative of certain members of the Toledo Police Department for the purpose of negotiating and entering into a collective bargaining agreement with a public employer, in this case, the city of Toledo. On January 1, 1997, the TPPA and the city entered into a such an agreement, codified as Toledo Municipal Code Chapter 2129. ¹

As of January 1997, the city of Toledo was patrolled by a combination of one-officer and two-officer patrol vehicles. The one-officer patrol vehicles were used only on the day shift and were not assigned to high crime areas or utilized at times of peak citizen demand. The one-officer patrol units were first instituted in 1972 as part of a voluntary pilot program rather than by a general order of the Toledo Police Department.

In January 1997, the TPPA learned that, pursuant to the order of Police Chief Galvin, the city would implement a decision to employ one-officer patrol vehicles for all units on the day shift, commencing on March 1, 1997.

On January 14, 1997, the president of the TPPA, D. Michael Collins, wrote a letter to Police Chief Galvin expressing the TPPA's concerns with regard to police safety, public safety, and efficiency in using only one-officer patrol units on the day shift. Collins supported his belief with statistical data. Collins sent a second letter to the chief at the end of January, again expressing concerns related to safety and efficiency. In support of his position, Collins offered two internal memoranda from the planning and research section of the Toledo Police Department, indicating safety and efficiency problems encountered with the use of only one-officer patrol units.

On February 24, 1997, the TPPA filed a class action grievance, alleging that the decision to use one-officer patrol units on the day shift violated several provisions of the collective bargaining agreement, as well as the bargaining agreement as a whole. The TPPA requested expedited arbitration of the grievance. In addition, the letter notifying the city of the TPPA's grievance contained a paragraph demanding that the city "bargain over all aspects of one person patrol units, including the fundamental decision of whether such system may be implemented in the first instance." The letter indicated that failure to contact the TPPA for the purpose of scheduling a bargaining session would be considered a refusal to bargain and that the failure to vacate the implementation date would be viewed as a refusal to bargain in good faith.

On February 25, 1997, Chief Galvin rejected expedited arbitration. The TPPA then informed the city that it would file a complaint in the common pleas court and request a temporary restraining order enjoining the city from implementing its patrol vehicle plan on March 1, 1997. Chief Galvin responded by agreeing to postpone the date of implementation and to provide Toledo City Council with the data regarding one-officer patrol units. In June 1997, Chief Galvin informed the TPPA that the one-officer patrol units on the day shift would be implemented on July 1, 1997.

On June 27, 1997, the TPPA filed a complaint asking the common pleas court to issue a temporary restraining order enjoining the city from instituting one-officer patrol units until the issue was arbitrated under the procedure set forth in the collective bargaining agreement. The TPPA further asked the court to (1) declare that the TPPA and its members would suffer irreparable harm as a result of the city's enforcement of one-officer patrol units, (2) declare that the city had violated Toledo Municipal Code Section 2129.14 by refusing to arbitrate the grievance related to the implementation of one-officer patrol units, (3) issue a preliminary and permanent injunction restraining the city and any of its employees from refusing to arbitrate any grievance related to the case at bar, (4) order the city to arbitrate any grievance related to this matter, and (5) award the TPPA costs and attorney fees.

The trial court granted the TPPA's request for a preliminary restraining order. The restraining order was later extended pending the outcome of this case.

In its answer and memorandum in opposition to the TPPA's motion for injunctive relief, the city argued that the TPPA's grievance was not subject to arbitration because it was based on a refusal to bargain. Asserting that a refusal to bargain is an unfair labor practice, the city maintained that the State Employment Relations Board ("SERB") had exclusive jurisdiction over the TPPA's claim. The city also insisted that the TPPA failed to meet the requirements, as set forth in Boys Markets v. Retail Clerks Union (1970), 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, and Aluminum Workers Internatl. v. Consol. Aluminum Corp. (C.A.6, 1982), 696 F.2d 437, for injunctive relief or an order compelling arbitration. Additionally, the city contended that Chief Galvin retained the right, as reserved in the collective bargaining agreement and pursuant to the Toledo City Charter, to control "stationing and transfer of all patrolmen." The city asserted that an "injunction will not lie to restrain" the chief in exercising that control.

After a trial to the bench, the common pleas court entered judgment in favor of the TPPA. Based on the evidence before her, the trial judge determined that the grievance filed by the TPPA was not solely based on a refusal to bargain. Rather, she concluded that the grievance alleged several breaches of the collective bargaining agreement and that, therefore, the common pleas court had the jurisdiction to consider the relief requested by the TPPA.

The court next analyzed the TPPA's request for injunctive relief under the standard enunciated in Aluminum Workers and its progeny and the equitable bases for injunctive relief. The court decided that "the TPPA and its members are without an adequate remedy at law and will suffer immediate and irreparable harm, injury and damage unless the permanent injunction [enjoining implementation of the one-officer patrol units prior to the arbitration of the TPPA's grievance] is granted."

Finally, the common pleas court determined the arbitrability of the TPPA's grievance. The trial judge rejected the city's argument that implementing the one-officer patrol unit plan was a matter within Chief Galvin's management prerogative. The court then held that the grievance as it related to the following agreement provisions was arbitrable: (1) safety issues under Section 2129.88; (2) breach of Section 2129.01, the "Recognition Clause," in that the implementation of the one officer patrol unit plan arguably "affects a term and condition of employment"; and (3) breach of the collective bargaining agreement as a whole.

The city's first assignment of error contends that the TPPA grievance asserts a "refusal to bargain," thereby bringing the union's claim within the exclusive jurisdiction of SERB.

R.C. 4117.08(A) requires a public employer to bargain with the exclusive representative of a particular group of public employees with regard to "[a]ll matters pertaining to wages, hours, or terms and other conditions of employment * * *." A public employer's refusal to bargain collectively with the exclusive representative is an unfair labor practice. R.C. 4117.11(A)(5). Pursuant to R.C. 4117.12(A), SERB has exclusive jurisdiction (1) to resolve claims committed to it under R.C. 4117.11 as unfair labor practices and (2) where a complaint filed in a common pleas court alleges conduct specifically enumerated in R.C. 4117.11 and is dismissed by a trial court for lack of subject-matter jurisdiction. See E. Cleveland v. E. Cleveland Firefighters Local 500 (1994), 70 Ohio St.3d 125, 127-128, 637 N.E.2d 878, 879-881.

One of the paragraphs in the TPPA's February 24, 1997 letter to Chief Galvin discusses the city's refusal to bargain the issue of one-officer patrol units. This is undisputedly a claim addressing an unfair labor practice within the purview of R.C. 4117.11(A)(5). Therefore, SERB has exclusive jurisdiction over this claim.

Nevertheless, the last paragraph of Collins's letter discusses the grievance instituted by the TPPA and the specific provisions of the collective bargaining...