Cincinnati v. State Emp. Relations Bd.Cincinnati v. State Emp. Relations Bd.
D E C I S I O N
Rendered on November 3, 2009
John Curp, City Solicitor, City of Cincinnati, and Augustine Giglio, Assistant City Solicitor, for appellant.
Richard Cordray, Attorney General, Anne Light Hoke and Aaron W. Johnston, for appellee State Employment Relations Board.
Hardin, Lazarus, Lewis & Marks, Stephen S. Lazarus and R. Jessup Gage, for appellee Employee Organization.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, J.
{¶1} Appellant, City of Cincinnati (“City“), appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the State Employment Relations Board (“SERB“) that granted the request of appellee, Cincinnati Assistant Fire Chiefs Union Local 48, International Association of Firefighters, AFL-CIO (“Union“) to
I. Procedural History
{¶2} On October 6, 2006, the Union filed a Request for Recognition with SERB, seeking to represent “[a]ll members of the Cincinnati Fire Department in the sworn rank of Assistant Fire Chief.” The City filed an objection to the Request for Recognition, contending both that the proposed bargaining unit was not an appropriate unit pursuant to
{¶3} After litigation concerning the timeliness of the City‘s objection was resolved favorably to the City, a hearing was held in February 2008 before an Administrative Law Judge (“ALJ“) of SERB, who recommended that SERB grant the Union‘s Request for Recognition. The City filed exceptions and a request for oral argument. On August 28, 2008, SERB denied the City‘s request for oral argument, adopted all the ALJ‘s recommendations, amending only the ALJ‘s third Conclusion of Law, and issued an order that granted the Union‘s Request for Recognition.
{¶4} Pursuant to
II. Assignments of Error
{¶5} The City appeals, assigning the following errors:
APPELLANT‘S FIRST ASSIGNMENT OF ERROR
The trial court erred in finding that the decision of the agency was supported by substantial, reliable and probative evidence and in accordance with law.
APPELLANT‘S SECOND ASSIGNMENT OF ERROR
The Trial Court erred in not precluding Assistant Fire Chiefs from claiming they were not management employees after having contracted with the City for higher pay/benefits in consideration of their management level duties and responsibilities for the City of Cincinnati.
III. First Assignment of Error
{¶6} The City‘s first assignment of error asserts the common pleas court erred in concluding under
{¶7} Under
{¶8} In its review, the common pleas court must give due deference to the administrative agency‘s resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, supra; see also Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826 (noting that while an agency‘s findings of fact are not conclusive, they are presumed correct and “must be deferred to by a reviewing court unless that court determines that the agency‘s findings are internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable“). ” ‘Where the court, in its appraisal of the evidence, determines that there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body, and necessary to its determination, the court may reverse, vacate, or modify the administrative order.’ ” Id. at ¶37, quoting Conrad at 111.
{¶9} By contrast, an appellate court‘s review is more limited. Provisions Plus, supra, at ¶8, citing Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. The appellate court determines whether the common pleas court abused its discretion. Id. An abuse of discretion implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Aida Ent., Inc. v. Ohio State Liquor Control Comm., 10th Dist. No. 01AP-1178, 2002-Ohio-2764, ¶11, quoting Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707. Absent an abuse of discretion, the appellate court may not substitute its judgment for that of the common pleas court. Provisions Plus, supra. An appellate court, however, has plenary review of purely legal questions. Id.
{¶10}
{¶11} The parties do not dispute the City is a public employer under
{¶12} According to the factual findings of SERB‘s ALJ, the Fire Department, consisting of approximately 835 firefighters, has four Assistant Fire Chiefs; each headed
{¶13} The Assistant Fire Chiefs further testified all grievance settlements had to meet the approval of the Fire Chief; the Assistant Fire Chiefs had no authority to settle any grievances without such approval. Although the Assistant Fire Chiefs and the District Fire Chiefs served as hearing officers at pre-disciplinary hearings, their authority was limited. After the hearing, they could recommend a penalty, sometimes first discussing the penalty with the Fire Chief. The recommendation, however, first was sent to the Fire Chief for review, then the Law Department, and then to the City Manager. Often the Fire Chief changed the recommended discipline, so that, as an example, the Fire Chief amended the recommendation in all but one of the last eight to ten cases Assistant Fire Chief Kuhn heard.
{¶14} Nor do the Assistant Fire Chiefs interpret the Collective Bargaining Agreement; they only ensure its express terms are followed. If interpretation is necessary, the Assistant Fire Chiefs call on the Labor Relations Manager in the Human Resources
{¶15} Similarly, the Assistant Fire Chiefs testified they do not make policy for their bureaus; rather, they clear any changes in policy with the Fire Chief before implementing them. Indeed, they testified to several instances where the Fire Chief overruled their suggestions. For example, Assistant Fire Chief DeMasi recommended that, to control internet usage, no personal computers be allowed on the fire department property; the Fire Chief overruled him and did not adopt his proposal. A second instance involved Assistant Fire Chief Kuhn, whom the Fire Chief instructed to write a letter to vendors explaining why a special events rate could not be set; the Fire Chief twice revised the letter. In the same way, when a new squad was created, Assistant Fire Chief Corbett, a board member, reviewed the candidates and sent an e-mail listing the results per the candidates’ score; after the e-mail was sent, the Fire Chief changed the selection process, and the list was changed.
{¶16} Employing the
{¶17}
{¶18} Finally,
{¶19} In an effort to circumvent the result such evidence allows, the City contends the Assistant Fire Chiefs handle administrative matters that are outside the responsibilities of the Executive Officer, noting the Executive Officer cannot take charge at a fire scene. The City argues the Assistant Fire Chiefs thus properly are considered management level employees. The evidence, however, reflects that the City follows incident command at a fire scene, or a system where the highest ranking officer on the scene is the incident commander and is in charge of the scene. If the Fire Chief were not present, the Assistant Fire Chief, if present, would be in charge. If the Assistant Fire Chief were not at the scene, the next in command would assume that role. Because some who could be in charge of the scene were also members of a collective bargaining unit, the Assistant Fire Chief‘s role as incident commander does not compel the conclusion the City proposes.
{¶20} The City nonetheless argues this case is similar to Twinsburg Fire Fighters, Local 3630 v. SERB (Oct. 23, 2001), C.P. No. 00CVF11-10059, where the issue was whether captains of the fire department were management level employees; both SERB and the common pleas court concluded they were. Twinsburg, however, presents considerably different facts because the duties of the captains in Twinsburg differed
{¶21} Despite other evidence in the record which may allow a different result than the one SERB reached, the record contains reliable, probative, and substantial evidence that the Assistant Fire Chiefs are not management level employees, but public employees. The common pleas court did not abuse its discretion in affirming SERB‘s order. The City‘s first assignment of error is overruled.
IV. Second Assignment of Error
{¶22} The City‘s second assignment of error contends the Assistant Fire Chiefs should not have been allowed to claim they were not management level employees, as they contracted with the City for higher pay and benefits in consideration of their management level duties and responsibilities for the City.
{¶23} On March 29, 2006, the Assistant Fire Chiefs entered into an agreement with the City Manager which became part of an ordinance City Council passed. Under the agreement, the Assistant Fire Chiefs received a pay and benefit package that automatically set the Assistant Fire Chiefs’ salary at 16 percent above the base salary of a District Fire Chief. The agreement provides that the “benefit package is provided to the
{¶24} The City contends the Assistant Fire Chiefs violate the spirit of the collective bargaining laws of Ohio when, to achieve personal gain, they subscribe to a written contract that explicitly justifies compensation due to their management level duties, but later repudiate the same terms to allow them to be a bargaining member of the union. The City argues that, at a minimum, the Assistant Fire Chiefs’ actions in signing a written agreement contrary to their evidence before SERB is sufficient to demonstrate the evidence SERB relied on is unreliable, self-serving and unsupportable.
{¶25} The trial court dismissed the City‘s argument, concluding the issue of whether each Assistant Fire Chief was a “management level employee” must be determined under the language of
{¶26} For the foregoing reasons, the City‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and CONNOR, JJ., concur.
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