[Cite as State Emp. Relations Bd. v. Brook Park, 2012-Ohio-5716.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 98524




      STATE EMPLOYMENT RELATIONS BOARD
                                                  PLAINTIFF-APPELLEE

                                                    vs.

                             CITY OF BROOKPARK
                                                  DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                       Civil Appeal from the
                 Cuyahoga County Court of Common Pleas
                          Case No. CV-766430


     BEFORE:      Sweeney, P.J., S. Gallagher, J., and Rocco, J.

     RELEASED AND JOURNALIZED:                December 6, 2012

ATTORNEYS FOR APPELLANT

Gary C. Johnson
William F. Schmitz
Eric Allain
Gary C. Johnson & Associates
635 W. Lakeside Avenue
Suite 600
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Lori J. Weisman
Assistant Attorney General
Labor Relations Section
615 W. Superior Avenue, 11th Floor
Cleveland, Ohio 44113

Thomas M. Hanculak
Daniel A. Powell
Diemert & Associates Co., L.P.A.
1360 S.O.M. Center Road
Cleveland, Ohio 44124


JAMES J. SWEENEY, P.J.:

     {¶1} The city of Brook Park (“City”) appeals from the trial court’s

judgment that affirmed the State Employment Relations Board’s (“SERB”)

order that found the City had violated R.C. 4117.11(A)(1) and (5) by
unilaterally implementing a collective bargaining agreement (“CBA”) prior to

exhausting the statutory dispute settlement procedures and reaching

ultimate impasse. For the reasons that follow, we affirm.

      {¶2} An appellate court’s role in an appeal that challenges a SERB

order is limited to determining whether the trial court abused its discretion in

rendering its decision on the same order. Lorain City Bd. of Edn. v. State

Emp. Relations Bd., 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988).

“The appellate court must affirm the judgment of the trial court if no abuse of

discretion occurred.” Id. Absent an abuse of discretion with regard to any

particular factual finding, we must defer to the facts as established by the

record.

      {¶3} The record contains the following findings of fact, which include

stipulations of the parties and the Administrative Law Judge’s (“ALJ”)

findings that were adopted by SERB and affirmed by the trial court:

      1. The City is a “public employer” as defined by §4117.01(B). At all

times relevant, Mark J. Elliot was the City’s Mayor, Neal Jamison was the

City’s Law Director.    Mayor Elliot and Mr. Jamison acted as agents or

representatives of the City.

      2. [The Brook Park Fire Fighters’ Association] Local 1141 is an

“employee organization” as defined by §4117.01(D) and is the exclusive
representative for the bargaining unit of the City’s fire fighters at the rank of

Lieutenant or below.

      3. The City and Local 1141 were parties to a collective bargaining

agreement (“2008-09 CBA”) effective from January 1, 2008 through December

31, 2009.

      4.    Article XXIII of the Agreement has a “Duration Clause” which

provided, in relevant part, as follows:

      This Agreement * * * shall remain in full force and effect until
      December 31, 2009. If either party desires to make any change
      in the Agreement for a period subsequent to December 31, 2009,
      notice of such a desire shall be given pursuant to this Article. If
      no notice seeking modification is given, then the Agreement shall
      remain in effect for another year, although notice may be given in
      any subsequent year prior to November 1, and the procedure
      stipulated herein shall then take effect.

      5. Since the inception of Ohio’s Collective Bargaining Act, Local 1141

and the City have had the same “Duration Clause” in Article XXIII of their

CBA. And, pursuant to that clause, the Union has always provided a Notice

to Negotiate in writing.

      6. On October 28, 2009, Gary Johnson, the bargaining agent for the

City, telephoned James Astorino, the bargaining agent for Local 1141, and

left the following message:

      Jim, Gary Johnson, [telephone number], calling you about two
      thriving metropolises: Parma and Brook Park. We served notice
      to negotiate on the guys in Parma a month ago and haven’t heard
      a thing, they want to get started negotiating. If you guys don’t
      want to do anything, then I’m supposed to file for fact-finding and
      get a list. I prefer not to do that, but time is of the essence.
      Brook Park not quite of such time essence but the Mayor would
      like to get started because we would like to get this thing
      concluded. So, if you can give me a call about both of these I
      would appreciate it.

      7. On or about October 30, 2009, Mr. Astorino left a voicemail for Mr.

Johnson indicating that he was returning his call. Mr. Johnson phoned Mr.

Astorino in early November to obtain negotiation dates, and Mr. Astorino said

that he had to get his committee together, and would get back to him.

      8. Other employee organizations representing City bargaining units

filed written Notices to Negotiate in 2009. Local 1141 desired an extension

of the previous agreement and did not file a Notice to Negotiate.

      9. On December 4, 2009, Local 1141 sent a letter to the City stating

that pursuant to Article XXIII of the 2008-09 CBA and O.R.C. §4117.14(B)(1),

Local 1141 had decided not to file a Notice to Negotiate.           Local 1141

explained that it was prepared to extend the 2008-09 CBA for another year

per the terms of the contract.

      10. On December 10, 2009, the City filed a Notice to Negotiate with

SERB, which was assigned Case No. 2009-MED-12-1505 and served upon

Local 1141 with a letter from Gary Johnson, outside counsel for the City.
The City’s first written correspondence regarding negotiations for a successor

CBA was the service upon Mr. Astorino of the City’s Notice to Negotiate.

       11. In the Notice to Negotiate, the City acknowledged that the parties

had not adopted a mutually agreed upon negotiations dispute settlement

procedure (“MAD”).

       12. After the filing of the Notice to Negotiate on December 10, 2010,

the City and the Union did not engage in formal negotiations.

       13. In December 15, 2009, the Union filed a Policy Grievance at Step 3

of the contractual grievance procedure, claiming the Notice to Negotiate was

wrongfully filed and was a misapplication of Article XXIII of the 2008-09

CBA.

       14. On December 21, 2009, SERB General Counsel J. Russell Keith

sent letters to Mr. Astorino and Mr. Johnson, informing them of the

assignment of the mediation case number. In the letter, Mr. Keith wrote,

“we understand that the parties do not have a mutually agreed dispute

settlement procedure (MAD) to resolve any impasses in current negotiations

and that the statutory dispute settlement procedure is to apply.”

       15. On January 11, 2010, Local 1141 filed a Motion to Dismiss the

City’s Notice to Negotiate, alleging that the City’s notice was not timely under

§4117.14(B)(1)(a) which provides that “any public employer or exclusive
representative desiring to terminate, modify, or negotiate a successor

collective bargaining agreement shall * * * [s]erve written notice upon the

other party * * * not less than sixty days prior to the expiration date of the

existing agreement[.]”

       16.   While Local 1141’s Motion to Dismiss was pending, the parties

engaged in preliminary discussions regarding proposals for a new contract.

Two meetings were held in January 2010.             In attendance were two

representatives from the City, Mayor Elliot and the City’s Human Resources

Director, and two representatives from the Union. The Union considered the

January meetings productive. Local 1141 suggested that it would withdraw

its Motion to Dismiss the Notice to Negotiate if the City proposed respectable

terms the Union Executive Officers could present to the Union body. Local

1141 also indicated its willingness to make certain concessions the City

desired if the City was willing to agree to stop pursuing the elimination of the

nine-man minimum manning requirement that had existed in the parties’

contracts for quite some time.

       17.   On January 25, 2010, the City opposed the Motion to Dismiss,

asserting that its notice was not untimely under Article XXIII of the 2008-09

CBA.
      18.   On February 2, 2010, SERB denied Local 1141’s Motion to

Dismiss. SERB reasoned that §4117.14(B) does not contain a “penalty”

provision that explains what happens if a party fails to file its Notice to

Negotiate at least sixty days before the expiration of the prior contract. In

addition, SERB noted that Article XXIII does not contain a sixty-day

requirement to initiate negotiations.    Therefore, SERB decided that the

City’s Notice to Negotiate was not untimely under Article XXIII, and the City

was not subject to any penalties under §4117.14(B).

      19.   After SERB denied Local 1141’s Motion to Dismiss, one more

meeting was held between the parties on February 5, 2010. At that meeting,

the discussions became tense after the City withdrew certain proposals made

at previous meetings.      The February meeting ended with the parties

standing, yelling at each other, and the Mayor ordering the Executive Officers

from the Union to leave his office.

      20. On February 15, 2010, Mayor Elliot sent a letter to Local 1141

stating that Local 1141 had refused to negotiate a successor collective

bargaining agreement, that Local 1141 had waived its right to negogiate, and

that, therefore, the City would unilaterally impose a collective bargaining

agreement for the 2010 calendar year (“the 2010 CBA”). The City stated that

the 2010 CBA contained the same provisions as the expired 2008-09 CBA
except for changes to insurance, the number of employees allowed off on

vacations and holidays, overtime rates, and the elimination of letters of

understanding.

        21. On February 16, 2010, in a letter to the City, Local 1141 responded

that it knew of no provision in Chapter 4117 allowing a municipality to

unilaterally impose a collective bargaining agreement upon a bargaining unit.

Local 1141 wrote that the City ignored the remedy provided in

§4117.14(C)(2), which states that parties unable to reach agreement can

notify SERB to intervene.

        22. Also, on February 16, 2010, Local 1141 field a Notice of Appeal to

the Franklin County Court of Common Pleas with SERB and filed a Notice of

Administrative Appeal in the Franklin County Court of Common Pleas (Case

No. CV002473) of SERB Directive Denying the Local’s Motion to Dismiss in

Case No. 09-MED-12-1505.

        23. On March 19, 2010, against objections from Local 1141 and at the

request of Mayor Elliot, the Brook Park City Council held a special meeting

and adopted Ordinance No. 9639-1010 approving the City’s proposed 2010

CBA.     The contract amendments/deletions were implemented by the City

after City Council approved the ordinance and have been in effect since that

time.
      24.    The City, at all times relevant, never requested SERB to

intervene.

      25. The contract unilaterally adopted by the City for 2010 amended or

deleted the following provisions of the 2008-09 CBA:

            Article X - Overtime

            Article XII - Vacation

            Article XIII - Holidays

            Article XV - Health Insurance

            Article XVI - Clothing Allowance

            Letter of Understanding - Physical Examination and Training

            Letter of Understanding - Nine Man Minimum

            Memorandum of Understanding - HRA Payroll Deduction

      {¶4} Local 1141 filed an Unfair Labor Practices Charge (ULP) with

SERB, alleging that the City had violated R.C. 4117.11(A)(1) by unilaterally

imposing a successor CBA.       After a hearing, the ALJ issued a Proposed

Order recommending that SERB find the City had violated R.C. 4117.11(A)(1)

and (5). The City filed exceptions. SERB adopted the ALJ’s reasoning and

remedy in its order issued September 30, 2010. The SERB order included

cease and desist, as well as, affirmative action directives to the City.
      {¶5} The City pursued an appeal from SERB’s order in the Cuyahoga

County Court of Common Pleas pursuant to R.C. 4117.13(D). The trial court

found that substantial evidence in the record supported SERB’s order and,

therefore, affirmed it.

      {¶6} The City commenced a timely appeal to this Court that advances

the following two assignments of error:

                          First Assignment of Error:

      THE LOWER COURT ABUSED ITS DISCRETION BY
      AFFIRMING AN ORDER FROM THE STATE EMPLOYMENT
      RELATIONS BOARD FINDING THAT BROOK PARK
      VIOLATED R.C. 4117.11(A)(1) AND (5) BY IMPOSING TERMS
      OF A COLLECTIVE BARGAINING AGREEMENT WITHOUT
      EXHAUSTING STATUTORY BARGAINING PROCEDURES.

                          Second Assignment of Error:

      THE LOWER COURT ABUSED ITS DISCRETION BY
      AFFIRMING SERB’S USE OF INCORRECT LAW TO DEFINE
      “ULTIMATE IMPASSE” AND NOT FIND THAT THE UNION
      WAIVED   ITS   RIGHT   TO   NEGOTIATE    BY  NOT
      PARTICIPATING IN THE PROCESS AS THE LAW REQUIRES.

      {¶7} The abuse of discretion standard applies to determine whether

the trial court erred by affirming SERB’s order. “The appellate court must

affirm the judgment of the trial court if no abuse of discretion occurred.”

Lorain City Bd., 40 Ohio St.3d 257, 260-261.

           It 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 4117. 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;

            ***

             (5) Refuse to bargain collectively with the representative of
      his employees recognized as the exclusive representative or
      certified pursuant to Chapter 4117. of the Revised Code[.]

R.C. 4117.11(A)(1) and (5).

      {¶8} The trial court affirmed SERB’s order that found that the City

committed a ULP because it failed to maintain the terms of the 2008-09 CBA

until ultimate impasse by failing to exhaust statutory dispute settlement

procedures and that constituted bad faith bargaining in violation of R.C.

4117.11(A)(1) and (5).

      {¶9} The City argues its unilateral imposition of the 2010 contract was

rightful based on its opinion that Local 1141 had committed an ULP by

allegedly refusing to negotiate.    Local 1141 responds that the unilateral

imposition of the 2010 contract was a form of unauthorized self-help and

invaded the exclusive jurisdiction of SERB. Local 1141 maintains that the

City failed to avail itself of lawful options, including the pursuit of a ULP

against Local 1141 or seeking SERB’s intervention. The City explains that it
did not pursue SERB’s intervention because the City was struggling

economically and it would take too long to pursue that option.

      {¶10} It is clear that “[e]xclusive jurisdiction to resolve unfair labor

practice charges is vested in SERB.” State ex rel. Ohio Dept. of Mental Health

v. Nadel, 98 Ohio St.3d 405, 2003-Ohio-1632, 786 N.E.2d 49, ¶ 23; E.

Cleveland v. E. Cleveland Fire Fighters Local 500, I.A.F.F., 70 Ohio St.3d 125,

127-128, 637 N.E.2d 878 (1994). Self-help remedies in response to alleged

unfair labor practices invade SERB’s exclusive jurisdiction and undermine

the statutory mechanisms that have been enacted to address unfair labor

practices. In re City of N. Royalton, SERB 99-002 (1-22-99).

      {¶11}   At the time the City imposed the 2010 contract, the parties

were in the period called “status quo ante,” which is the time period between

the expiration of the official contract and the exhaustion of the dispute

settlement procedures. In re Circleville, SERB 2005-007 (8-25-05). During

status quo ante the prior contractual provisions carryover until the parties

reach ultimate impasse.    “If the parties never reached ultimate impasse,

then the unilateral implementation of [employer’s] last, best offer was a

ULP.” Twinsburg City Sch. Dist. Bd. v. State Emp. Relations Bd., 172 Ohio

App.3d 535, 2007-Ohio-957, 876 N.E.2d 580, ¶ 14 (9th Dist.).
     {¶12} SERB found that the parties had not reached ultimate impasse

pursuant to Ohio Adm.Code 4117-9-02(E), which provides:

      (E) Except as the parties may modify the negotiation process by
      mutually agreed-upon dispute settlement procedures, the parties
      shall continue in full force and effect all the terms and conditions
      of any existing collective bargaining agreement, without resort to
      strike or lockout, for a period of sixty days after the party gives
      notice, until the expiration date of the collective bargaining
      agreement, or the statutory dispute settlement procedures are
      exhausted, whichever occurs later.

See also, SERB v. Circleville, SERB 2002-ULP-05-0341.

      {¶13} The City asserts that it was an abuse of discretion for the trial

court to accept SERB’s definition of ultimate impasse. The City argues that

ultimate impasse occurs when there is no realistic possibility of a

continuation of discussion at that time that would have been fruitful. In

support, the City relies upon an excerpt from Twinsburg, which noted that

SERB had “adopted the NLRB’s definition of ultimate impasse in its

proceedings.”   Twinsburg, 2007-Ohio-957, ¶ 15.        Contrary to the City’s

position, this definition must be read in conjunction with, and not completely

ignore, the statutory scheme applicable to public employees’ collective

bargaining, which includes Ohio Adm.Code 4117-9-02(E).
      {¶14}    It is undisputed that the parties did not have a mutually

agreed-upon dispute settlement procedure (“MAD procedure”).         Therefore,

the statutory dispute settlement procedures applied.

      {¶15} The City did commence statutory dispute settlement procedures

with its Notice to Negotiate. R.C. 4117.14(B)(1).           However, the City

maintains that the law does not permit it to move the process to conciliation

pursuant to R.C. 4117.14(D)(1).         This interpretation of the statutory

provisions is unreasonable. The provisions of subsection (D)(1) and (D)(2)

simply set forth the varying procedures that govern strike-prohibited

employees and non-strike prohibited employees.           They do not prohibit

employers of strike-prohibited employees from implementing the specified

procedures.    The City offers us no precedent that would support this

interpretation and we have found none.

      {¶16} Because the parties did not have a MAD procedure, they were

required to exhaust statutory settlement procedures before reaching

“ultimate impasse.”    The City did not do so. The City made no attempt to

move to conciliation in this case despite notice from SERB that the statutory

dispute settlement procedures applied. SERB did not misinterpret the law

and the trial court did not abuse its discretion in this regard.
      {¶17} The City further contends that Local 1141 waived its right to

bargain. A union will not be held to have foregone a statutory right absent a

“clear and unmistakable” waiver. E.g., Lakewood v. State Emp. Relations

Bd., 66 Ohio App.3d 387, 584 N.E.2d 70 (8th Dist. 1990). In this case, Local

1141 filed a motion to dismiss the City’s Notice to Negotiate with a

reasonable belief that it was untimely pursuant to Article XXIII of the

2008-09 CBA, and therefore, Local 1141 believed that the terms of the

existing contract would rollover. The record reflects that some preliminary

negotiations took place while Local 1141’s motion to dismiss was pending

with SERB. However, once the motion was denied, the negotiations soured

and ultimately the Union members were ordered to leave the City’s office.

Although Local 1141 perfected an appeal of the order denying its motion to

dismiss to Franklin County Court of Common Pleas, it has yet to be decided.

The record does not contain a clear and unmistakable waiver by Local 1141 of

its right to bargain.

      {¶18} The trial court did not abuse its discretion by affirming SERB’s

order. The assignments of error are overruled.

      {¶19} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
