766 N.E.2d 1027 | Ohio Ct. App. | 2001
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *458
The township and the FOP had reached an impasse on the two issues of discipline and wages in their collective bargaining agreement. The parties participated in a labor conciliation or arbitration through the State of Ohio State Employment Relations Board ("SERB"). This process consisted of the arbitrator or conciliator choosing between each party's offer on the two issues. The conciliator issued a final offer settlement award selecting the FOP's proposal for binding arbitration for employee suspension, demotion or termination, and the FOP's proposal for wages.
The township filed a motion with the trial court to vacate the conciliator's decision, and the FOP filed a motion to confirm the decision. The trial court *459 confirmed the conciliator's decision on discipline, but vacated the decision on wages and remanded the issue for a rehearing by the conciliator. We will address the township's assignment of error first, which is as follows:
WHETHER THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE CONCILIATOR AWARDING BINDING ARBITRATION FOR SUSPENSION, DEMOTION AND DISCHARGE.
The township argues that discipline is not a mandatory subject of bargaining that can be imposed upon it when the township refuses to bargain on that issue, and that the conciliator exceeded his authority by making discipline a mandatory subject of bargaining.
A court of common pleas review of a final offer settlement award, a.k.a. conciliator's award, is governed by R.C.
With this standard in mind, we review the common pleas court's extensive written decision. The common pleas court correctly stated that its scope of review of an arbitrator's decision is very narrow, and that R.C.
R.C.
R.C.
(A) All matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective *460 bargaining between the public employer and the exclusive representative, except as otherwise specified in this section.
(B) The conduct and grading of civil service examinations, the rating of candidates, the establishment of eligible lists from the examinations, and the original appointments from the eligible lists are not appropriate subjects for collective bargaining.
(C) Unless a public employer agrees otherwise in a collective bargaining agreement, nothing in Chapter 4117 of the Revised Code impairs the right and responsibility of each public employer to:
(1) Determine matters of inherent managerial policy which include, but are not limited to areas of discretion or policy such as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, and organizational structure;
(2) Direct, supervise, evaluate, or hire employees;
(3) Maintain and improve the efficiency and effectiveness of governmental operations;
(4) Determine the overall methods, process, means, or personnel by which governmental operations are to be conducted;
(5) Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote, or retain employees;
(6) Determine the adequacy of the work force;
(7) Determine the overall mission of the employer as a unit of government;
(8) Effectively manage the work force;
(9) Take actions to carry out the mission of the public employer as a governmental unit.
The employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment, and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement. A public employee or exclusive representative may raise a legitimate complaint or file a grievance based on the collective bargaining agreement.
The Ohio Supreme Court has stated that R.C.
The common pleas court reviewed both the standard for determining what the word "affect" means as defined by the Ohio Supreme Court3 and the balancing test used by SERB4 when determining whether a subject is a mandatory or permissive subject of bargaining. The common pleas court noted that SERB interpretations of Chapter 4117 are entitled to due deference by a reviewing court and should not be disturbed unless they are otherwise clearly unlawful. Lorain City School Dist. Bd. of Educ. v.State Employment Relations Board (1988),
The common pleas court stated that it was persuaded by the reasoning of SERB and the trial court in Swanton. The common pleas court reasoned that serious discipline acts upon or produces a material influence upon working conditions. Lorain. Further, the common pleas court employed the balancing test utilized by SERB and found that the subject in the instant case was logically and reasonably related to terms and conditions of employment; the employer's freedom to impose serious discipline was not impaired by the impartial review of its justification and appropriateness; and the mediatory influence of collective bargaining and impasse resolution mechanisms were appropriate means of resolving conflicts over the imposition of serious discipline. *462
The common pleas court found that the appeal of disciplinary action involving a demotion, discharge or suspension without pay relates to the conditions of employment and is a mandatory subject of bargaining.
In addition, the common pleas court found that the instant case fell within the parameters of the portion of R.C.
The common pleas court noted and described the discipline and disciplinary procedures contained in the previous bargaining agreement between the parties. In addition, the previous CBA permitted binding arbitration for grievances concerning a breach, misinterpretation, or improper application of the agreement. The common pleas court stated that this broad grievance provision provided for arbitration of all disputes that may arise out of the parties' contractual relationship.
The common pleas court wrote that the language regarding discipline contained in the CBA involves "questions as to the proper interpretation and application of the agreement," and "a dispute between the parties as to whether there is just and sufficient cause to impose discipline, and what level is appropriate, is already subject to the grievance procedures which culminate in binding arbitration." The common pleas court suggested that the parties could have excluded discipline from the previous CBA's grievance procedure if that was their intention. The common pleas court found that binding arbitration of serious discipline was already provided for in the previous CBA.
The township argued that portions of the previous CBA simply recited the statutory right of appeal pursuant to R.C.
There is a dearth of appellate case law on the issue of mandatory versus permissive subjects of collective bargaining involving discipline or disciplinary procedures. We have reviewed the authorities cited by both parties. The common pleas court was faced with a unique set of facts upon which it made a determination. We cannot say that the court below erred as a matter of law by *463 relying upon the rationale of the common pleas court in Swanton and SERB opinions in deciding that the instant case involved a mandatory subject of bargaining for which the township should bargain and in ruling that the conciliator did not exceed his authority in his determination of that issue.
The township next argues that the conciliator exceeded his authority because R.C.
Further, the common pleas court noted that R.C.
The common pleas court opined that the CBA similarly did not specify that binding arbitration was the exclusive remedy and, therefore, an affected employee would be able to also avail himself or herself of statutory remedies under R.C.
For the reasons stated above, we overrule the township's assignment of error and affirm the decision of the common pleas court on the issue of discipline.
The FOP advances two assignments of error in its cross appeal of the common pleas court's decision to vacate the portion of the conciliator's award selecting the FOP's wage final offer.
Assignment of Error No. I:
THE COMMON PLEAS COURT ERRED IN VACATING THAT PORTION OF THE CONCILATION AWARD THAT RELATES TO THE WAGE ISSUE AND ORDERING A REHEARING OF THE WAGE ISSUE BY THE CONCILIATOR.
The FOP and the township filed their final offers for the final offer settlement conciliation hearing five calendar days before the hearing pursuant to *464
R.C.
The township filed an unfair labor practice charge against the FOP for filing its amended final offer less than five days before the conciliation hearing. SERB found that the FOP's action constituted an unfair labor practice, but did not alter the conciliator's award that had been issued. The township filed a motion to vacate the conciliator's award on the wage issue as well as the discipline issue. The common pleas court granted the motion to vacate in part for the wage issue and remanded for a new hearing before the same conciliator. The FOP argues that the reviewing court must confirm a conciliation award not disturbed by SERB.
The common pleas court's review of the conciliator's decision on wages is the same standard as outlined above for the township's appeal. R.C.
(3) The conciliator shall conduct the hearing pursuant to rules developed by the board. The conciliator shall establish the hearing time and place, but it shall be, where feasible, within the jurisdiction of the state. Not later than five calendar days before the hearing, each of the parties shall submit to the conciliator, to the opposing party, and to the board, a written report summarizing the unresolved issues, the party's final offer as to the issues, and the rationale for that position.
* * *
(7) After hearing, the conciliator shall resolve the dispute between the parties by selecting, on an issue-by-issue basis, from between each of the party's final settlement offers, * * *.
The common pleas court found that filing a modified offer after the time permitted was "inherently prejudicial." The common pleas court opined that permitting modifications does not serve the interest of requiring each side to submit its best good faith final offer. The conciliator and the FOP both cited the language of Ohio Admin. Code
The common pleas court stated that it would rely upon the clear language of the statute. Further, the court below stated that the administrative *465
code section could not contradict the express language of the statute and would be invalid if interpreted to change the legislative entitlement of R.C.
The common pleas court found that the conciliator exceeded his power in accepting the final offer not submitted at least five days before the hearing. A plain reading of the statute at issue leads this court to find that the common pleas court did not err as a matter of law in finding that the conciliator exceeded his powers and that the wage portion of the award must be vacated, despite SERB's decision not to act on the conciliator's award. The FOP's first assignment of error is overruled.
We affirm the common pleas court's decision to vacate this portion of the conciliator's award and to remand for a rehearing on this issue. However, the court below erred when, upon remanding the matter, it instructed the conciliator to consider new final offers submitted by the parties. While it is unfortunate that there has been such a delay since the original conciliation award, we rely upon the plain reading of R.C.
Assignment of Error No. II:
THE COMMON PLEAS COURT ERRED WHEN IT FAILED TO AWARD INTEREST ON THE WAGE INCREASES DUE THE EMPLOYEES.
The FOP argues that interest should have been awarded on the wage increases when the township refused to implement the conciliation award. The common pleas court stated that because it was vacating that portion of the award dealing with the award of wages, there was no arbitration award upon which to assess interest pursuant to R.C.
Judgment is affirmed on the discipline issue and prejudgment interest issue. Judgment is affirmed in part and reversed in part on the wage issue and remanded to the common pleas court for proceedings consistent with this opinion.
YOUNG, P.J., and VALEN, J., concur.
