Co., LPA mail to the City "accepting" the City's pre-strike bargaining proposal. 'The City responded...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL., CITYOF CLEVELAND,

Relator-Appellant,

vs.

JUI)GE JOHN D. SUTULA,

Respondent-Appellee.

On appeal from the Eighth District Courtof Appeals

Court of AppealsCase No. 94264

BRIEF IN SUPPOR'P OFMOTION TO STAY OF RELATOR-APPELLANT CITY OF CLEVELAND

Charles E. Hannan, Jr. (0037153)8"' Floor Justice Center1200 Ontario StreetCleveland, Ohio 44113T: 216/ 443-1153

C.OLTNSEL FOR RESPONDENT-APPELLL+LJUDGE JOHN D. SUTULA

Stephen S. Zashin (0064557)Jon M. Dileno (0040836)

(Counsel of Record)Zashin & Rich Co., LPA55 Public Square, 4`h FloorCleveland, Ohio 44113T: 216/696-4441F: 216/ [email protected](a),zrlaw.com

and

Robe-t J. Triozzi (0016532)Director- Departinent of LawCity ol' ClevelandCleveland City IIall601 Lakeside Ave., Room 106Cleveland, Ohio 44114

COUNSEI, FOR RELATOR-APPELLANT:I'HE CITY OF CLEVELAND

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL., CITY OFCLEVELAND,

On appeal from the Eighth District Court ofAppeals

Relator-Appellant,

Vs.

JUDGE JOHN D. SUTULA,

Respondent-Appellee.

Court of AppealsCase No. 94264

BRIEF IN SLiPPOR'T OF RELATOR-APPELLANT CITY OF CLEVELAND'SMOTION TO STAY PROCEEDINGS INCUYAHOGA COUNTY COURT OFCOMMON PLEAS CASE NO.: CV-700307

1. INTRODUCTION

Appellant, the City of Cleveland ("the City"), moves for a stay of the trial court

proceedings pending its appeal of the decision of the Eighth District Court of Appeals denying

the City's Writ ot' Prohibition. '1'he City seeks this stay because absent this Court's intervention,

the trial court will retain jurisdiction of a matter falling exclusively witliin the jurisdiction of the

State Employment Relations Board ("SERB"). Specifically, if the trial court retains jurisdiction,

the City's lead negotiator will be subjected to a deposition regarding his role and actions during

collective bargaining negotiations; the trial eourt will attempt to mediate a collective bargaining

agreenient (via its settlement conference scheduled for April 1, 2010); the trial court will

entertain dispositive motions as to the existence of a collective bargaining agreement; and, then

if a dispositive motion is not granted, the parties will potentially appear at trial before a jury

wherein the jury will be asked to determine the existence of a valid collective bargaining

agreement.

2

The claims levied in the miderlying Coniplaint by Plaintiff fall exclusively within

SERB's jurisdiction. Yet, the trial court has refused to release its hold on this matter, resulting in

the remarkable proceedings now looming before it. At no point eould the authors of Ohio's

Collective Bargaining Act liave imagined that a trial court, and even a jury, would he defining

the terms of a public-sector collective bargaining agreement. 1'he trial court's jurisdiction must

he stayed to allow this Court to consider this appeal.

II. SUMMARY OF FACTS

'The decision of the Eighth District Court of Appeals accurately sunimarizes the facts of

this case. (S, ec, Ex. 1, Appellate decision at pp. 1-3.) In sum, the City and the Municipal

Construction Equipment Operators' Labor Council ("the Union") were negotiating an initial

contract for a long-standing bargaining unit previously represented by the International Union of

Operating Engineers. The parties conducted their negotiations imder the auspices of SERB from

October 2007 to June 2008, and when an impasse was imminent, the parties engaged in

niediatioti before a SERB-appointed medator. 1'hen, when the parties were unable to avert

inipasse, they proceeded to a fact-finding hearing per the rules established by SERB and before a

neutral appointed by SERB. The neutral fact-finder generated a report on July 2, 2009, which

the Union rejected in accordance with Ohio's Collective Bargaining Act, O.R.C. §4117.14(C)(6).

Then, following the directives of O.R.C. §4117.14(D)(2), the Union filed a"notiee of strike,"

giving ten days' advance notice of its intent to strike. Before the ten-day notice expired, the

parties engaged in mediation - again with the SERB-appointed mediator.

3

Just prior to the strike deadline, the City presented a proposal through the SERB-

appointed mediator in a last effort to avert a strike. The Union rejected the proposal and the next

morning (July 17, 2009) took its members out on strike.

During the strike the Union presented two counterproposals through the SERB-appointed

mediator. The City rejected the first counterproposal. '1'hen, during the pendency of the second

counterproposal, and on the thirteenth day of the strike, the Union changed course and sent an e-

mail to the City "accepting" the City's pre-strike bargaining proposal. 'The City responded by

inforniing the tJnion that the proposal was no longer being offered and that if the employees

returned to work, they would be doing so under the pre-strike terms and conditions of

eniployment. The following day the employces ended their strike and returned to work witli the

City.

On July 31, 2009, the tJnion filed a complaint for declaratory judgment, damages and

other equitable relief. 1'he Union asserted that the City "refused and iailed to perform in accord

with [its] offer"; "has no legitimate basis Ior its refusal to perform in accord with its offer"; and

that this "failLU•e to perform" damaged tlnion members. (See, Complaint at ¶4). The Union's

complaint also sought "specific performance, injunctive relief and damages" and an order

requiring the City to "prepare a new collective bargaining agreement with the Union"; "present

the New CBA lcollective bargaining agreement] to Cleveland City Council" recommending

approval and implementation "after ratification of the New CBA by the members of the

bargaining unit"; and "make payments to members of this bargaining unit in accord with

Cleveland's offer." (Id. at 116).

4

Soon after the filing of the Complaint, the City filed a motion to dismiss based on the trial

court's lack of subjeet matter jurisdiction - the matter falling exclusively within S1iRB's

jurisdiction. During the pendency of that motion, the trial court conducted a case management

conference and set a calendar for discovery, a settlement conference and trial. The trial cout-t

denied the City's motion on Noveinber 6, 2009, and subsequently set a ncw calendar for

discovery (extended from February 1 to March 18, 2010), settlement conCerence (April 1, 2010)

and trial (June 28, 2010). (See, Ex. 2). 1'he trial court also ordcred the deposition of the City's

lead negotiator, which is scheduled to occur on March 22, 2010. See Ex. 3).

Following the trial court's denial oi'the City's motion to dismiss, the City filed a Writ of

Prohibition with the Eight District Coutt of Appeals. The Appellate Court denied the Writ on

March 8, 2010.

111. ARGUMENT

The lawsuit filed by the Plaintiff Union with the trial court asserts, in no uncertain terms,

that the City has failed to honor a tentative agreement and, by doing so, has engaged in bad-faith

bargaining. There exists no question that an assertion impugning an employer's actions during

and concerning collective bargaining in the public sector falls exclusively within SERB's

jurisdiction. To coticlude otherwisc would allow the trial court (and possibly a jury) to assess the

parties' actions during the collective bargaining process and ultimately allow for a jury to compel

the acceptance of terms for a public sector, union contract.' Such usurpation of jurisdiction was

never contemplated by Ohio's legislature and has been fiercely rejected by this Court.

' In its Complaint, the Plainti ffUnion made a demand for a juty trial. Although the Citywould assert that due to the relief sought (declaratory judgment, injunctive relief), this is tiot acase to be considered by a jury, that question has yet to be placed before the trial court.

5

A. Collective Barltainina Falls Sguarely and Exclusively Within SERB'sAuthority and Jurisdiction.

Chapter 4117 of the Ohio Revised Code is the playbook for collective bargaining

between Ohio's public employers and their employees. 1'he Act includes a myriad of provisions

ranging from the establishment of SERB, to the organization of unions, to impasse resolution, to

the enforcement of the parties' bargaining obligations, the determination of any violations of

those obligations, and the remedying oP any such violations. The Act's coverage of collective

bargaining in the public sector is comprehensive. See, R.C. §§4117.01 et seq.) For instance,

Section 4117.01(G) defines what it means "to bargain collectively"; Section 4117.03 establishes

the rights of public employees to exercise collective bargaining rights; Section 4117.08 sets [orth

the "matters subject to collective bargaining"; Section 4117.09 identiries what public sector

collective bargaining agreements must contain to be valid; Section 4117.10(B) requires the

submission of tentative agreements for approval by the employer's legislative body; and Sections

4117.11(A)(1) and (5) emimerate unlawfLd activity, identified as cml'air labor practices, including

tnalcing it unlawful for a public employer to "intertere with, restrain, or coerce employees in the

exercise of the rights guaranteed in Chapter 4117" and/or to "refuse to bargain collectively."

'1'his list oP statutory provisions is by no means exhaustive, but, as seen, the entire

bargaining relationship - from the initial notice to negotiate, to mediation, impasse, and dispute

resolution, and on to reaching linal terms, ratification, memorialization, and execution - is

governed by the leinis of Chapter 4117 and overseen and enforced by SERB. And, with limited,

precise exceptions, nowhere are the Courts of Common Pleas identified except in the context of

appeals lronl, or enforcement of, orclers rendered by SERB.

6

As stated by the Suprenie Court of Ohio in Franklin Countv Law Enforcement Assoc. v.

Fraternal Order ol' Police Capital CitLodge No. 9, (1991) 59 Ohio St.3d 167:

[I]f a party asserts claims that arise Crom or depend on the collective bargainingrights created by Chapter 4117, the remedies provided in that chapter areexclusive.

Id. at syllabus. (Emphasis added). (This Court held that claims questioning the legitimacy ol' a

collective bargaining agreement between a union and a public employer must be originated

with SERB.)

More recently, in Consolo v. City of Cleveland (2004), 103 Ohio St.3cl 362, 2004 Ohio

5389, this Court again denied jurisdiction to the courts over a matter involving, in part, whether a

viable contract existed between a public employer and a union. In Consolo, su ra, the plaintifPs

asserted entitlement to the local prevailing wage as well as claiming that they were never

represented by a certain employee organization. Iiowever, the defendant, the City of Cleveland,

asserted that the employees wei-e represented by a union which had negotiated an agreement

waiving certain rights under the local prevailing wage law.

This Court affirmed the lower court's dismissal (and reversed the Eighth District Court of

Appeals) based on "ripeness" grounds, because the issues of union representation atid whether a

valid agreement between the City and the union existed had to first be decided before the trial

court could even entertain the specific prevailing wage issues. Id. at 367. "I'he Court quoted

Franklin County for the proposition that "Chapter 4117 has created a series of new rights and set

I'orth the remedies and procedures to be applied to those rights ...[T]hose reniedies and

procedures are exclusive." Consolo, 103 Ohio St.3d at 366, - uotin , Frarilclin County, 59 Ohio

St.3d at 170. It then explained that:

7

SERB also has exclusive authority to determine whether appcllees' compensationlevels were the result of collective bargaining. Where collective barLmining hasoccurred, R.C. Chapter 4117 prevails over anv and all other conflictine, laws.

Consolo, 103 Ohio St.3d at 367 (emphasis added). Accordingly, this Court directed that SERB

would have to answer the threshold questions, including whether a valid contract existed

between the City and the union. See, also, SERB v. City of Martins Ferry (1991), 1991 Ohio

App. LEXIS 2600 (7th Dist., Jun. 6, 1991)(appeals court deferred to decision of SERB in

reversing eommon pleas court and held that public employer's rejection of tentatively agreed to

bargaining proposals violated Chapter 4117) (See, Ex. 4); Last Palestine v_SERB (1987), 1987

Ohio App. LEXIS 10088 (7th Dist., Dec. 15, 1987)(appeals court afGimed SERB decision that

refiisal to execute collective bargaining agreement violates Chapter 4117) (See, Ex. 5).

Simply put, the complaint over hich the trial court is exercising jurisdiction here

represents an attempt by the Plaintiff-Union to have the lower court intervene in the Chapter

4117 collective bargaining t^rocess itsell'. Here, the Union's complaint alleged that the City

committed numerous acts that can only be characterized as alleged violations of rights created by

Chapter 4117. The Union alleged that the City: (1) failed to engage in good faith bargaining as

required by Chapter 4117; (2) failed to abide by the contract ratification process required upon

reaching a final, tentative agreement tnandated by R.C. §41 17.10(73); (3) refused to reduce the

terms ol' the alleged final agreement to writing as required by R.C. §4117.09; (4) failed to

"porform" as required under obligations alleged to arise utider a collective bargaining agreement

negotiated under Chapter 4117; and (5) caused damage to tJnion members' by denying their

8

Chapter 4117-created rights under an alleged collective bargaining agreement. llnder the clear

precedent of this Court, such actions can only be filed witli SERB.'

In turn, the Plaintiff-Union has souglit to obtain discovery - through its requests for

admissions and the deposition of the City's bargaining representative - whicli are entirely

focused on the parties' negotiations held under and made private by the provisions of

Chapter 4117.

Yet, despite the overwhelming evidence and law supporting the conclusion that the

Union's claims fell squarely under the Act and SERB's exclusive jurisdiction, the trial court

denied the City's Motion to Dismiss and elected to continue to exercise Luiauthorized judicial

power a decision affirmed by the appellate court via its denial of the City's Writ of Prohibition.

Now, if this Court does not stay the proceedings below, the City's lead negotiator will be

deposed, the trial court will attempt to mediate a public-sector collective bargaining agreement,

dispositive motions will be entertained regarding the existence of a contract and a juiy could be

empanelled whieh could ultimately determine the terms of a collective bargaining agreement.

This Court should stay the trial court's blatantly-unlawful exercise ot'author'rty.

B. The Appellate Court has Committed Clear Error in not Divestinp the Trial

Court of Jurisdiction.

Despite the presentation of uncontroverted facts which undeniably denionstrate that the

trial court was unlawfully replacing SERB as the original arbiter in a collective bargaining

matter, the Appellate Court dismissed the City's Writ of Prohibition. In its written opinion, the

1, Incredibly, in 2004 this very Plaintiff-Union - representing another bargaining unitcomprised of City construction equipment operators - presented the sanie allegations against the

City but did so by filing an unfair labor practice witli SERB! Speciiically, the MCEOLC in 2004

claiined that the City had reneged on a tentative agreement allegedly reached regarding thatbargaining unit's first contract with the City. T'he Union, feeling that the City had reneged on itsagreement, did not go to court but iustead filed an unfair labor practice charge with SERB. (See,Ex. 6).

9

Appellate Court reasoned that since the parties were operating under an expired collective

bargaining agreement, their action somehow fell outside of' SER13's exclusive domain.

The Appellate Court's contention is without merit. Collective bargaining occurs in a

myriad of eircumstances where an expired or "futurc" contract is the subject of' negotiations.

Parties negotiating on initial contracts; parties which do tiot complete negotiations prior to

contract expiration; and parties negotiating where a new union has taken over for a predecessor

union (as in the instant case) - each constitute circrniistances wherein parties engage in collective

bargaining without an "active" collective bargaining agreement. In those circunstances, the

parties' obligation to follow the requirements of Chapter 4117 is no different than if the

negotiations were taking place during the term of an existing agreernent. In all these

circumstances, the parties must bargain in good faith; must proceed to a dispute resolution

process (fact-linding andlor conciliation); can only reject a fact-tinder's report via a vote of the

membership or legislative body; must submit tentative agreements to those bodies, cannot go on

strike without issuing a 10-day strike notice; and, the list goes on and on.

Simply put, the bargaining process and the law governing it are no different whether in

the face of an expired contract or an "active" eontract. In both cases, Chapter 4117 governs

collective bargaining and SERB has exclusive jurisdiction to address allegcd violations of the

law. Indeed, taking the Appellate Court's rationale to its logical end, a city and a union

negotiatitig a contract that expires at niidnight on June 30'h will fall within SERB's jurisdiction

until 11:59 p.m. on June 29"', but once negotiations extend past 12:00 midnight, their actions fall

outside of SEIZI3's exchisive purview. Of course, such a proposition cannot represent the state of

law.

10

Likewise, the Appellate Com-t's (and Respondent-Appellee's) reliance upon the case

State ex rel. Rootstown Local School Dist. Bd. of lid.V. Potl.age Ctv, Court of Common Pleas

(1997), 78 Ohio St.3d 489 is equally misplaced. In Rootstowm, the Ohio Supreme Court denied a

writ of prohibition because the union's claims in the underlying action arose from R.C.

§3319.081 (a statute creating the right for certain non-teaching school employees to ctiter into

written employment contracts) not Chapter 4117. The union filed its action only after the

employer had subcontracted all of the bargaining unit jobs and had laid off all of the employees,

effectively nullifying the collective bargaining relationship and violating R.C. §3319.081. Thus,

the claims did not fall within SFRB's exclusive jLuisdiction. The Court held that, "Il if a party

asserts rights that are independent of R.C. Chapter 4117, the party's complaint may properly be

heard in common pleas court," Id. at 493, citing Franklin Cty. Law Fnforcement Assn. v.

Ftaternal Order of Police Capital City Lodge No. 9, (1991) 59 Ohio St.3d 167 (Syllabus ¶2).

Here, again, the Union asserts improprieties in the collective bargaining process itsclf.

Nowhere does it assert that the City has violated sonie independent statute for the lower court to

analyze. '1'o the contrary, the Union has asked the lower court to find that the City cngaged in

bad-faith bargaining and to find "the existence of a colleetive bargaining agreement" - requests

that can only be answered by SERB.

Finally, the Appellate Court's emphasis on the fact that an unfair labor practice charge

was not filed in this matter does nothing to support its decision. Indeed, to accept that rationale

would be to suggest that a party can extinguish SERB's exclusive jurisdiction by simply ignoring

that forum altogether.

11

IV. CONCLUSION

There is no question that the claims filed in the trial court are based entirely on the

collective bargaining process between the City and the Plaintiff-tJnion. In turn, the law, as

established by this Court, miquestionably requires that such claims be 61ed with SERB. Yet, the

trial court and the Appellate Courl have refused to divest the lower court of its jurisdiction,

thereby subjecting the City to discovery (including the deposition of its lead negotiator), a

settlement conference and even a possible trial by jury for the purpose of assessing the parties'

actions during negotiations and determining the existence of a collective bargaining agreement.

'This Court should stay the proceedings of the trial court to ave-t the blatantly improper actions oi'

the trial court, until such time that it can consider this appeal.

Respectfully subinitted,

ZASHIN & RICH CO., L.P.A.

Ste+krn'S. Zashin (0064557)Jon M. Dileno (0040836)ZASHIN & R1CFI CO., L.P.A.55 Public Square, 4th FloorCleveland, Ohio 44113216.696.4441 telephone216.696.1618 facsimilessz c^zrlaw.corn'md cdzrlaw.com

and

Robert J. Triozzi, Esq.Director- Department o(f LawCity of ClevelandCleveland City Hall601 Lakeside Ave., Room 106Cleveland, Oliio 44114Attorneys for Relator-AppellantThe City of Cleveland

12

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Memor•andum in SuppoNt of

Motion of Relator-AppelCant to S'tcry Proceedings in Cuyahoga County Court of Common Pleas

Case No.: CV-700307 was served this L-1-`h day of Marcli, 2010, via electronic mail and

certified U.S. Mail upon the following:

Charles E. Hannan, Jr.Assistant County Prosecutor8`t' Floor Justice Center1200 Ontario SU-eetCleveland, OTI 44113

Counsel I'orRespondent-Appellee

Jou-1WI: Dileno, Esq. (#00408:

1cM-o9-06

13

Court of Appeals of Ohio, Eighth District

County of CuyahogaGerald E. Fuerst, Clerk of Courts

SIO EX REL., CITY OF CLEVELAND

Relator COA NO.94264

ORIGINAL ACTION-vs-

JUDGE JOHN D. SUTULA

Respondent MOTION NO. 429056

Date 03108/2610

Journal Entry __

MD'tION BY RESPONDENT TO DISMISS IS GRANTED. SEE JOURNAL ENTRY AND OPINION OF

SAME DATE.

FILED AND JOUPNA.LIZ1WDPER APP.R. 22(C)

Presiding Judge COLLEEN CONWAY COONEY,Concurs

Judc e JAMES J. SWEENEY, Concurs

a:

Court of Appeals of Ohio, Eighth District

County of CuyahogaGerald E. Fuerst, Clerk of Courts

S/0 F,X REL., CITY OF CLEVELAND

Relator COA NO.94264

ORIGINAL ACTION

-vs-

JUDGEJOHN D.SUTULA

Respondent MOTkON NO. 431210

C^3

Date 0310812010

Journal nry^,_____

COMPLAINT DISMISSED. SEE JOURNAL ENTRY AND OPINION OF SAME DATL- SIGNED BY ANN

DYKE, J.; COLLEEN CONWAY COONEY, P.J., AND JAMES J. SWEENEY, J., CONCUR.

Presiding Judge COLLEEN CONWAY COONEY,

Concurs

FOAR, ® 8 20

J II.C ; dti1^7 JCUi3NA1.JZLDA P P:t3, 22(C)

ENEYC:oncurs {JAMES JSWEJ .udqe

4C^.2, i^ i 7Ci`f

^4urt of 2vtpPeaz-5 0GIGf-iT1I APPELLA'i'E DIS'I`RICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND O'INIONNo. 94264

STATE OF OHTO, EX REL.CITY OF CLEVELAND

RELATOR

vs.

JUDGE JOHN D. SUTULA

RESPONDENT

JUDGMENT:COMPLAINT DISMISSED

Writ o{' ProhibitionMotion No. 429056Order No. 431.210

RELEASE DA'i'E: Mazch.8, 2010

ATTORNEYS FOR RELATOR

Stephen S. ZashinJon M. DilenoZashin & Rich Co., L.P.A.55 ]?ublic Square4th FloorCleveland, Ohio 447.1,3

Robert J. TriorziDirector of LawCity of Cleveland601 Lakeside Ave., Rooan 1.06Cleveland, Ohio 44114-1077

ATTORNEYS FOR RESPONDENT

William D. MasonCuyahoga County Prosecutor

By: Charles E. Hannan, Jr.Assistant Count,y Prosecutor8th Floor Justice Center

1.200 Ontario StreetCleveland., Ohio 4411.3

-1-

ANN DYKE, J.:

The cit,y of Cleveland ("City"), the relator, has filed a complaint for a writ

of prohibition. The City seeks an order froi,n this court, which prevents Judge

John 1). Sutula, the respondent, from exercising any jurisdiction in Man. Constr.

L'quip. Operators' Labor Council v. Cleveland, Cuyahoga County Court of

Common Pleas Case No. CV-700307. Judge Sutula has filed a snotion to dismiss,

which we grant for the followir,tg reasons.

Facts

`I'he following facts are gleaned from the coinplaint for a writ of

prohibition, Judge Stiriula's motion to dismiss, an.d tlie brief in opposition to the

motion to dismiss:

(1) the Municipal Construction Equipment Operators' Labor Council

("Union") has been certified by the State Employment Relations Board. ("SERB")

as the exclusive bargaining representative of a bargaining unit that consists of

employees in the City's Water and Property Management Divisions;

(2) in October 2007, the City and the Union entered into negotiations for

a collective bargaiuing agreement;

(3) in 1bl,rrch 2009, the Union declared that a bargaining impasse existed

and requested that SERB appoint a fact-finder to resolve the negotiation

disputes;

-2-

(4) on July 2, 2009, the appointed fact-finder issued his Report and

Recommendation;

(5) on July 6, 2009, tlio Union notified SERB that its members rejected the

fact-findcr's Report and Recomrn.endation and that a strike was scheduled for

July 17, 2009;

(6) on J uly 16, 2009, the City submitted a final proposal to the union in an

effort to avert the strike;

(7) on July 16, 2009, the Union rejected the City's final proposal and

commenced a strike on July 17, 2009;

(8) on July 27, 2009, the Union presented a counter-proposal to the City,

which was rejected;

(9) oir July 29, 2009, the Union presented a second counter-proposal;

(10) on July 29, 2009, the Union accepted, via eznail, the City's original

final proposal and indicated that the strike was over as of 5:30 a.in. on July 30,

2009;

(l1) on July 29, 2009, the City notified the Union that the original fixral

proposal was no longer availa.ble for acceptance, thus rejecting the Union's

acceptance of the original final proposal;

(12) on July 30, 2009, all striking Unian members teturned to their

positions of employment;

-3-

(13) on July 31, 2009, tho Uni.on filed a complaint for declaratory

jud gm.ent, damages, and other equitable relief in Mi.an,. Consf,r. E'quip. Opera.tors'

Labor Councid v. Clevelrrnd, supra;'

(14) on September 3, 2009, the City moved to dismiss the complaint for

declaratory judgment and other equitable relief oi1 the basis that all of the

Union's claims were solely within SERB's exclusive jurisdiction;

(15) on November 6, 2009, Judge Sutula denied the City's motion to

dismiss;

(16) on November 17, 2009, the City conimenced this original. action in

prohibition, with an applicatioii for an alternative writ of proliibition, against

Judge Sutula;

'The Union's complaint contains two counts. Count I seeks declaratory

judgment, while Count 2 is grounded in specific perfor nance, injunctive relief, anddamages: The Union, through its complaint, prays that frhe "Court will issue an order

that: (a) finds Cleveland refused and failedto perform in accord witb. Cleveland's Offer,(b) declares Cleveland has no legitimate basis for its refusal and failure to perform inaccord with Cleveland's Offer; (c) holds Clevc;land's falure to perform has dainaged themembers of the bargaining unit described in this complaint; (d) requires Cleveland tocooperate with the C1+:.O 17nion in. preparing a. New CBA, consistent with Clevela.nd'sOffer; (e) requires Cleveland to present the New CBA to Cleveland City Council, witha recommendation by Cleveland's administration for its prompt approval and

implementation, and to witlldraw any contrary communication, after ratification of thoNew CBA by the members of this bargaining ui'iit; and (f) Cleveland shall thereafter

inake the payments to the members of this bargaining unit in accord with Cleveland's

offer, along with prejudgment and post-judgment interest, attorney fees and sucfi other

relief as the Court deems just."

-4-

(17) on November 19, 2009, this court denied the City's application for an

alternative writ of prohibition and established abriefirig schedule for the parties;

(18) on December 7, 2009, Judge Sutula filed his motion to dismiss the

complaint for a writ of prohibition; and

(19) on December 18, 2009, the City filed a brief in opposition to the motion

to dismiss.

Legal Analysis

Prohibition: GeneralRules

In order for this court; to issue a writ of prohibition, the City must

establish that (1) Judge Sutula is about to exercise judicial or quasi-judicial

power, (2) the exercise of that power is not authorized by law, and (3) denying

the writ will result in injury for which no otlier adequate remedy exists in the

ordinary course of the law. State ex rel. Sltiwinslei v. 13urnham Unruh, 118 Ohio

St.3d 76, 2008-Ohio-1734, 886 N.E:.2d 23.0; State ex rel. hipi,n.shi v. Cuyahoga

Cty. Court of Commora Pleas, 74 Ohio St.3d 19, 1995-Ohio-96, 655 N.E.2d 1303.

An adequato remedy at law will preclude relief in prohibition. State ex rel.

Lesher v. Kainrad (1981), 65 Ohio St.2d 68, 417 N.E.2d 1382; State ex rel.

Sibarco Corp, u. Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428. F'urtlierntore,

absent a patent and unambiguous lack of jurisdi.etion, a coi,trt having general

sub;joct-matter jurisdiction over zm action possesses the legal autbority to

-5-

deterinine its own jurisdi.ction, and a party challenging its jurisdiction has ari

adequate reniedy at law by way of a post-judgment appeal. Whitehall ex rel.

Wolfe u. Otatin G'iv. Rights Conr,m. (1995), 74 Ohio St.3d 120, 656 N.E.2d 688.

Pinally, an appeal does not constitute an adequate remedy at law if the court

patently and unainbig'uousl.y lacks jurisdiction over the action. State ex rel.

Lewis v. 111oser (1995), 72 Ohio St.3d 25, 647 N.ZiJ.2d 155.

City's Cdairii of Patent and rhnarn,biguous Lack of Jurisdiction

In the case sub judice, the City argues that Judge Sutula patently and.

unanibiguously lacks jurisdiction over the Union's action for declaratory

judgment, damages, and other equitable relief because tlie claims are within

SF.R$'s exclusive jurisdiction. Tli,e general rule is that if a party asserts claiuis

that arise from or are dependent on the collective bargaining rights created by

R.C. Chapter 4117, SERB possesses exclusive jurisdiction over the action.

Fra.nh.lirr. Cty. Law Ertforcemerat Assn. v. I'raterrtial Order of Police, Capital City

Lodge No.9(199J), 59 Ohio St.3d 167, 572 N.E:2d 87, paragraphs one and two

of the syllabus. SERB's exclusive jurisdiction, however, is prexn.ised upon the

existence of a valid collective bargaining agreement.

"Relators' reliance on these cases is misplaced. fn Fraternal Order of

Tolice,76 Ohio St.3d 287, 667 N.E.2d 929, the claims arosc from an existing

collective bargaining agreement. The agreement here, however, has expired.

-6-

Similarly, despite relators' contentions to the contrary, Van.dalia-Butler,

[(Aug. 15, 1991.), Montgomery App. No. 12517] did not hold that an employer's

validly implemented final offer following impasse constitutes a t:ollective

bargaining agreement `as a matter of law.' * * * a collective bargaining

agreement must be approved by the employee organization, reduced to writing,

and executed by the parties. * * *

((x * *

"If a party asserts rights that are independent of R.C. Chapter 41.17, the

party's complaint may ps'operly be heard in cornmon pleas court. 1%rankltin Cty.

Enforcement Assn., supra, 59 Ohio St.3d 167, 572 N.E.2d 87, at paragraph two

of the syllabus. "* *" State ex rel. Root'st,own Local School Dist. f3d, of Edn. u.

Portage Cty. Cottrt of Common Pleas (1997), 7S Ohio St.3d 489, 493, 678 N.E.2d

1365.

FLerein, it is clear that Judge Sutila, as a judge of Che conImon pleas courb,

possesses original jurisdiotion in actions for declaratory judgment, damages, an d

other equitable relief. R.C. 2721.02(A.), 2305.01. It is also clear that in the

action currently pending before Judge Sutula, no claim of an unfair labor

practice, pursuant to R.C. 4117.11, has been raised by any party. Ii; must also

be noted that there exists no collective bargaining agreement between the

parties in the underlying civil action. The clai.ms raised by the Union in the

-7-

underlying action, are not dependent uport any collective bargaining rights

under R.C. Chapter 4117 and jurisdiction is not exclusive to SERB. State ex rel.

Boggs u. Spriragfield Local School Dast. Bd. of Edrz., 82 Ohio St..3d 222, 1998-

Ohio-249, 694 N.E.2d 1346. Thus, Judge Sutula does not patently and

unambiguously lack jurisdiction to hear the Unio.n's action for declaratory

judgment, daxrzages, and other equitable relief. We also find that Judge Sutula

can determine the court's jurisdiction and t:hat there exists an adequate rem.edy

at law to challenge the exercise of the jurisdiction by way of an appeal. Kr•ooss

u. Murray, 123 Ohio S1:.3d 85, 2009-Oh.io-4051, 914 N.E.2d 366; State ex rel.

Plant u. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485.

Accordingly, we grant Judge Suttda's motion to dismiss. Costs to the City.

.[t is further ordered that the Cierk of the Eightli District C'.ourt o£.A.ppeals serve

notice of this judgsnent upon all parties as required by Civ.R. 58(B).

Complaint dismissed.

t=1LEp AND JOtJRNIAt.l'3::DPE}? APP. R. 22(C)

COLI-,EI!:N CON*2^Y COONEY, P.J., andJAMES J. SWEI!^NIi;Y, J., CONCUR

1 Iillll IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IillCASE: CV-09-700307

750234MIJNLCIPAL CONSTRLJCTION EQUPIMP;NT OPEI

VS.CLEVELAND. OHIO C/O ROBERT J TRIOZZI. DIh

JUDGE: JOHN D SU'[ULAROOM: 23B JUSTICE CENTERDOCKE"C DATE: 10/07/2009

CMC ORDER: TRfAL SET 6-28-10 AT 9 AM...FPT SET6-9-10 AT 10:00. SC SET 4-1-10 AT 10:00. DISCOVERYSHALL BE COMPLETE BY 2-1-10. PLIP SHALL SUBMITEXPERT REPORTS BY 2-1-10. DEFT SHALL SUBMITEXPERT REPORTS BY 3-19-10. ALL MOTIONS,DISPOSITIVE OR OTHERWISE. MUST BE FILED BY4-23-10 WITH BRIEF IN OPP DUE.5-24-10._OSJ NOTICEISSUED

FROM:

I First-Class Mail II U. S. Postage Paid II Cleveland, OH II Permit No. 1962

-----__......----'

CU V AHOGA CDUNTY-GOURT OFCOkO,1ON P[.GS

I GF.'R ALD E. FULRST -CLFRK OF W UR1S

I mSIlCEC6M1TCR-COUKrroVVER

I 12000NTARfOST

CL4VELAND.OH4AIl3

- - - - - - - - - - - - -

TO:JON M DILENOZASHIN & RICH CO., L.P.A.55 PUBLIC SQUARE, 4TH FLOORCLEVELAND. OH 44113

Tammra A. Rhodes

From: [email protected]: Thursday, February 25, 2010 1231 PMTo: Tammra A. RhodesSubject: Cuyahoga County Clerk of Courts Notification [CV-09-700307]

This is an autoinated notification. Please DO NOT REPLY to this E-Mail.'This E-Mail message, iricluding any attachments, is for the sole use of the intendedrecipient(s) and may contain private, confidential and/or privileged information. Anyunauthorized review, use, disclosure or distribution is prohibited. If you are not theintended recipient, please destroy all copies of this ori.ginal E-Mail message.

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Case: CV-09-700307Case Caption: MUNICIPAL CONSTRUCTION EQUPIMENT OPERATORS' ETC. vs. CLEVELAND, OHIO C/O

ROBERT J TRIO'/.'LI, DIR LAW DEPT

Judge: JOHN D SUTULARoom: 23B JUSTICE CENTER

Docket Date: 02/24/2010Notice ID/Batch: 151.79788 - 793089

To: JON M DILENO

PLTF'S MOTION (#2896540) TO EXTEND DISCOVERY AND EXPERT REPORTS IS GRANTED. BOTH DATES ARE

EXTENDED 45 DAYS FROM THIS JOURNAL ENTRY..NO FURTHER EXTENSION ... NOTICE ISSUED

On Copy:STEWART D ROLL (P1A) - [email protected]

STEWART D ROLL (P1A) - [email protected]

STEPHEN S ZASHIN (DIA) [email protected]

Tammra A. Rhodes

From: [email protected]: Thursday, February 25, 2010 12:31 PMTo: Tammra A. RhodesSubject: Cuyahoga County Clerk of Courts Notification [CV-09-700307)

This is an automated notification. Please DO NOT REPLY to this E-Mail.This E-Mail message, including any attachments, is for the sole use of the intendedrecipient(s) and may contain private, confidential and/or privileged information. Anyunauthorized review, use, disclosure or distribution is prohibited. If you are not theintended recipient, please destroy all copies of this original E-Mail message.---------------------------------- - --------------------------------------------------

Case: CV-09-700307Case Caption: MUNICIPAL CONSTRUCTION EQUPIMENT OPERATORS' ETC. vs. CLEVELAND, OHIO C/O

ROBERT J TRIOZZI, DIR LAW DEPT

Judge: JOHN D SUTULARoom: 23B JUSTICE CENTER

Docket Date: 02/24/2010Notice ID/Batch: 15179836 - 793089

To: JON M DILENO

PLTF'S MOTION (#2880542) FOR ORERS IS GRANTED IN PART AND DENIED IN PART. GEORGE CRISCI,

DEPONENT, SHALL APPEAR FOR HIS DEPOSITION AT A TIME, DATE MUTUALLY CONVENIENT TO THE

WITNESSES AND COUNSEL FOR THE PARTIES. THE REMAINDER OF PLTF'S MOTION IS DENIED. THE

DEPOSITION IS TO OCCUR WITHIN 30 DAYS...NOTICE ISSUED

On Copy;STEWART D ROLL (PlA) - [email protected]

STEWART D ROLL (P1A) - PXKASA(dCLIMACOLAW.COM

STEPHEN S ZASHIN (D1A) - [email protected]

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1991 Ohio App. LEXIS 2600, *

STATE EMPLOYMENT RELATIONS BOARD, COMPLAINANT-APPELLEE, and FRATERNAL ORDEROF POLICE LODGE NO. 78, INTERVENOR-APPELLEE, APPELLANT, v. CITY OF MARTINS FERRY,

OHIO, RESPONDENT-APPELLANT, APPELLEE

Case No, 90-6-37

Court of Appeals of Ohio, Seventh Appellate District, Belmont County

1991 Ohio App. LEXIS 2600

June 6, 1991

PRIOR HISTORY: [*y.] Character of Proceedings: Civil Appeal from Belmont County

Common Pleas Court, Case No. 89-CIV-263.

DISPOSITION: JUDGMENT: Reversed.

CASE SUMMARYt

PROCEDURAL POSTURE: Appellant, a police officers' union, sought review of a judgmentfrom the Belmont County Common Pleas Court (Ohio), which found that appellee citycommitted no unfair labor practices in rejecting tentative labdr agreements.

OVERVIEW: The city and the union reached tentative agreements for new laborcontracts, which were submitted to the city council. Instead of approving or rejecting theagreements, the city council proposed changes in the agreements. The union filed acharge of unfair labor practices. An administrative ruling in the union's favor deemed theagreements to have been approved by reason of the city's failure to act. The commonpleas court, however, concluded that the city had timely and properly rejected theagreements. Although the union had not filed a motion to intervene, the court concludedthat the union had standing to appeal because the city had designated the union as anintervenor in its pleadings. The court, in reversing the trial court's judgment, held thatwhen a tentative agreement was submitted to a legislative body pursuant to Ohio Rev.Code Ann. § 4117.10, the legislative body could either approve or reject the tentativeproposal, as a whole, within 30 days of submission. A failure to act by the legislative bodyresulted in a deemed approval of the tentative agreement. The statute made no provision

for counterproposals.

OUTCOME: The court reversed the trial court and entered judgment affirming the

administrative decision in favor of the union,

CORE TERMS: legislative body, tentative agreements, executive session, bargainingprocess, counterproposal, public employer, final offer, settlement, lieutenants, bargaining,negotiations, approve, proposed agreement, notice of appeal, designated, session, hearingofficer, real party in interest, intervenor-appellee, intervenor, tentative, patrolmen, councilmeeting, police department, bargaining agreement, employee organization, evidencesubmitted, formal action, recoliection, negotiating

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LEXISNEXIS(R) HEADNOTESEducation Law > Funding > Fiscal ManaaementGovernments > Local Governments > Duties & PowersLabor & Employment Law > Employment Relationships > General Overview

HH1-+Ohio Rev. Code Ann. § 4117.10(B) provides that a public employer shall submft arequest for funds necessary to impiement an agreement and for approval o` anyother matter requiring the approval of the appropriate legislative body to thelegislative body within 14 days of the date on which the parties finalize theagreement, unless otherwise specified, but if the appropriate legislative body isnot in session at the time, then within 14 days after it convenes. The legislativebody must approve or reject the submission as a whole, and the submission shallbe deemed approved if the legislative body fails to act within 30 days after thepublic employer submits the agreement. The parties may specify that thoseprovisions of the agreement not requiring action by a legislative body are effectiveand operative in accordance with the terms of the agreement, provided there hasbeen compliance with § 4117.10(C). If the legislative body rejects the submissionof the public employer, either party may reopen all or part of the entireagreement. As used in this section, "legislative body" includes the generalassembly, the governing board of a municipal corporation, school district, collegeor university, village, township, or board of county commissioners or any otherbody that has authority to approve the budget of their public jurisdiction.

Governments > Local Governments > Employees & Officials % . -Labor & Employment Law > Collective Bargaining & Labor Relations > General OverviewNh2_4^Ohia Rev. Code Ann. § 4117.10(B) provides, in part, that the legislative body

must approve or reject the submission as a whole. The statute makes no provisionfor counterproposals on the part of the legislative body.

Governments > Local Governments > Administrative BoardsGovernments > Local Governments > Duties & PowersGovernments > Local Governments > Employees & OfficialsNu3.,^The "public employer" who engages in negotiations is separate and apart from a

legislative body such as a city council. Labor negotiations are administrativeactions separate and apart from legislative actions. Ohio Rev. Code Ann. § 731.05provides that the powers of the legislative authority of a city shall be legislativeonly, it shall perform no administrative duties. Thus, pursuant to Ohio Rev. CodeAnn. § 4117.10, when a tentative agreement is submitted to a legislative body,the legislative body may do one of two things. It may only approve or reject thetentative proposal within 30 days of submission. Failure to so act by the legislativebody shall trigger a deemed approval of the tentative agreement.

cOUNSEL: For Complainant-Appellee, State Employment Relations Board: Lee Fisher,Attorney.General, Wayne Kriynovich, Asst. Attorney General, Labor Relations Section,

Cleveland, Ohio.

For Intervenor-Appellee, Appellant, Fraternal Order of Police, Lodge No. 78: David H.

Bodiker, Columbus, Ohio.

For Respondent-Appellant, appellee, City of Martins Ferry, Ohio: Daniel P. Fry, City Law

Director, Martins Ferry, Ohio.

lUDGES: Joseph E. O'Neill, Judge, Joseph Donofrio, P.7., Edward Cox, J., concurs.

OPINION BY: O'NEILL

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OPINION

OPINION

The very narrow question involved in this appeal is whether the Council of the City of MartinsFerry, in the latter part of 1986, rejected a tentative settlement which had been struckbetween the Mayor of the City of Martins Ferry and a negotiator in behalf of all of the policeofficers and lieutenants employed by the City of Martins Ferry.

As the result of a charge of unfair labor practice having been filed before the StateEmployment Relations Board, a complaint had [*2] been issued and a hearing wasconducted by a hearing officer. Following that hearing, the hearing officer proposed to theboard that it find that there had been a timely and proper rejection of tentative agreementswhich had been submitted and that the board dismiss the charges and complaints filedagainst the city. The proposal by the hearing officer was submltted to the State EmploymentRelations Board which did not concur in the recommendation but rather found that theframers of the statute distinguished and separated the roles of the legislative body and thepublic employer in the collective bargaining process and delineated their responsibilities.Pursuant to R.C. 4117.10(C), the publicemployer's chief executive officer or his designatedrepresentative is responsible for negotiations. The legislative body may accept or reject aproposed collective bargaining agreement but has no other function in the bargainingprocess. The acceptance or rejection must be made in whole.

The separation of powers must be construed as the legislature's way of maintaining therelationship between the legislative bodies, particularly their f[scal authority, and the powersof the executive and administrative [*3] offices.

The separation also has a very practical application because it places the legislative body,who must accept or reject the collective bargaining agreement, above the fray of the oftenemotionally charged bargaining process. Thus legislative bodies, which are elected by thepopulace, are removed from the rigors and direct political pressures that can generate in a

bargaining confrontation.

The logic and intent of the legislature in crafting procedures for the collective bargainingprocess to function efFective3y is evident, as set forth in R.C. 4117.14.

Each step is designed to move the parties closer to settlement. A proposed agreementsubmitted for acceptance or rejection to a legisiative body represents the ultimate effort ofthe bargaining parties toward settlement. The acceptance or rejection of the proposedagreement by the legislative body is another step toward the completion of this process. Theproposed agreement is submitted to the legislative body solely for acceptance or rejection.Submission of the proposed agreement is not a signal for the legislative body to beginbargaining anew or to negate all the bargaining that has been accomplished. Nor is it meantto 1*4] protract the bargaining process. If the tentative agreement is approved by thelegislative body and the employee organization, when reduced in writing, the agreement isbinding on the legislative body, the employer, the employee organization and employeescovered by the agreement. If rejected, the parties, as in the instant case of strike prohibitedempioyees, shall submit the matter to a final offer settlement procedure. This, again, is amove toward settlement, not an interruption or a protraction of the process.

Finally, the integrity of the entire bargaining process is jeopardized if either party ispermitted to treat an agreement submitted for ratification as nothing more than a proposal.If this were to be allowed, then the carefully crafted procedure for ever moving the parties

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forward toward settlement is irreparably ruptured, for it could forestall the culmination of thebargaining process indefinitely.

The foregoing finding by the State Employment Relations Board was appealed to theCommon Pleas Court of Beimont County by the City of Martins Ferry. This notice of appealset forth the parties as being the State Employment Relations Board, Complainant-Appellee,and Fraternal [*S] Order of Police Lodge No. 78, intervenor-Appeliee, and City of MartinsFerry, Ohio, Respondent-Appellant. Following the filing of various briefs, the judge of theCommon Pleas Court, coming on for disposition, found very specifically that the Council ofthe City of Martins Ferry "* * * did timely and properly reject the tentative agreements withthe result that no violation of Ohio Revised Code Section 4117.11(A)(1) or (A)(5) was

committed * * *."

Initially, the City of Martins Ferry, an appellee before this court, raises a question as tostanding of the appellant, Fraternal Order of Police. The appellee City points out andcontends that the only real party in interest in the lower court were State EmploymentRelations Board and the City of Martins Ferry. The appellee City goes on to state "Appellantappeared as intervenor, never having complied with Rule 24 or Rule 5 of the Ohio Rules ofCivil Procedure. Appellant filed no brief with the Belmont County Court of Common Pleasupon which the opinion of August 9, 1990 was based. Yet, when the real party in interest,SERB the only legitimate appellee, elected to not appeal the decision of the Belmont CountyCourt of Common Pleas, intervenor [*E] then labeled itself as appellant and filed its noticeof appeal. Counsel for appellee respectfully submits that if for no other reason,intervenor-appellant's appeal should be dismissed as improper because it was not the real party in

interest."

We recognize that the Fraternal Order of Police did not pursue the civil rules relative to beingadmitted as an intervenor. However, as we have previously pointed out, it was the appellantCity of Martins Ferry which, in its notice of appeal to the Common Pleas Court, designatedthe Fraternal Order of Poiice as an intervenor-appellee and,.as a matter of fact, served acopy of the notice of appeal upon the designated intervenor-appellee. This fact, alone, causes

us to ignore this contention.

Labor contracts had been in force between the City of Martins Ferry and lieutenants in theirpolice department and patrolmen in their police departments. These contracts were due to

expire on June 30, 1986,

Negotiation for new contracts were conducted between the city through the mayor of the cityand the police bargaining units. Tentative agreements were arrived at and were submitted tothe city council. The duties of the city council are provided by R.C. [*7] 4117.10(B), which

reads as follows:

HNzT"The public employer shall submit a request for funds necessary to implement anagreement and for approval of any other matter requiring the approval of the appropriatelegislative body to the legislative body within fourteen days of the date on which the partiesfinalize the agreement, unless otherwise specified, but if the appropriate legislative body isnot in session at the time, then within fourteen days after it convenes. The legislative bodymust approve or .reject the submission as a whole, and the submission shall be deemedapproved If the legislative body fails to act within thirty days after the public employersubmits the agreement. The parties may specify that those provisions of the agreement notrequiring action by a legislative body are effective and operative in accordance with theterms of the agreement, provided there has been compliance with division (C) of this section.If the legislative body rejects the submission of the public employer, either party may reopenall or part of the entire agreement.

"As used in this section, 'legislative body' includes the general assembly, the governing board

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of.a municipal corporation, [*8] school district, college or university, village, township, orboard of county commissioners or any other body that has authority to approve the budget of

their public jurisdlction."

Upon its review of the evidence submitted at the hearing, it was the determination of StateEmployment Relations Board that the city council had neither approved or rejected thetentative agreement and that, resultantly, the agreement came into force and effect. Uponher review of the order of State Employment Relations Board and the evidence submitted atthe State Employment Refations Board hearing, the judge of the Common Pleas Courtconcluded that the record, which had been made before State Employment Relations Board,was "* ** without such evidence as a reasonable mind could rely upon to conclude councildid not entirely reject the agreement, this court is compelled to reverse the decision of

SERB."

It was clearly established, by way of testimony, that the proposed tentative agreements wereconsidered by various members of the city council while meeting in executive session or, asthey designated it, caucus. There was no record made of this executive session. Whateverconclusions were arrived at, [*9] in these executive sessions, none were proposed in apublic meeting of the council for a vote. Factually, everything was off-the-record.

Les Douglas, who was president of the council at the time the tentative agreements wereunderstudied by the council, described "an executive session":

"q. So, there are no rriinutes of any meetings of executive --

"A. No

"Q. -- Session. Is that correct?

"A. That's correct.

"Q. Council acts through its formal proceedings; Is that your understanding?

"A. Right.

"Q. So, whatever happened in executive session did not officially happen. Is that correct?

"A. No official action was taken." (Tr. 200.)

"Q. Okay. Mr. Douglas, the contracts that were discussed on the 7th in that meeting, in that

special meeting --

"A. Yes.

"Q. -- were they ever acted upon by council?

"A. Never by council, no. Never acted on, no," (Tr. 221).

"Q. Okay. But actually, you can't vote in an executive -- or you can vote, but you can't bindthe city by any act you do in executive session, can you?

"A. That's right.

"Q. You have to do that out in front of God and the world again, right?

"A. Yes." (Tr. 253).

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Edward Bruney, who was a councilman at the time, [*10] further testified:

"Q. Okay. Do you recall the council taking action on the proposal? In other words, the itemsthat had been negotiated on October 22nd, do you recall council at some time after that date

addressing those items?

"A. Addressing the items, yes, I remember that.

"Q. Okay. I want to show you what has been marked -- what is actually the second page ofemployee Exhibit No. 7. It carries a date of November 20th, 1986.

"A. Okay, Yeah.

"Q. Have you ever seen those terms before?

"A. Yeah.

"Q. Okay. Can you tell me what those terms represent?

"A. That represents what we as council had agreed to and the proposals that we had

rejected.

"Q. Okay. Did that, to your knowledge go back to the lieutenants as a counteroffer, or asyour counterproposal, whatever you want to term it?

"A. yes, yes." (Tr. 268).

Councilman Bruney was also questioned as to "executive session":

"Q. Okay. What is the purpose of executive session of council?

"A. Depends on what we go to executive session for. I mean, we usually specify what we'regoing into session for. Usually -- I think it's usually to eliminate personality -- financial

matters and personnel-type --

"Q. Are you allowed [*11] to take formal action in executive session?

"A. No, sir. You're in violation of the law.

"Q. Any action by council has to be done openly and in full counci) meeting; is that right?

"A. You said it." (Tr. 283).

"Q. Did council ever take any formal action in regard to those tentative agreements?

"A. Not to my knowledge, recollection.

"Q. Pardon?

"A. Not to my recollection, no, sir." (Tr. 288).

"Q. Did council eventually address what you had termed a tentative agreement? In othrwords, did they say yes or no to it?

"A. I dori't think they took any action at all. I don't know whether we even --

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"Q. Pardon me?

"A. I only recall just showing the proposal --

"Q Did they make any counterproposales to it?

"A. Several members objected strongly to a coupie of the items that the gentleman showedme about the final offer." (Tr. 290).

John Regis, who was mayor at the time involved also testified:

"Q. AII right. Now did you, in fact, present those agreements to council?

"A. They were presented. Now, whether at the meeting or before, like I said, I don't lcnow,

But they did go out.

"Q. Okay. Did council ever act on them?

"A. Formally, I don't think they did." (Tr. [*12] 328).

"Q.Mayor, the tentative agreement that resulted as of the October 22nd meeting, the J.J.Dinner, the tentative agreement that came out of that, both for patrolmen and lieutenants,was that agreement ever reduced to full contract form and signed by you?

"A.You mean a contract that's in the book --

"Q. Right.

"A. -- The full page, no.

"Q. Right. Let's talk informal now. That proposal was presented to council at a later council

meeting --

"A. Yes, sir.

q. -- The fieutenants' proposal? Did fhey act on it in executive session?

"A. Formally, no, They went over the whole contract, and each person, not as a vote, but asa personal opinion, gave their thoughts on each brolce-down piece.

"Q. All right. What was the net result at the end of the negotiating session as far as what was

council's position?

"A. The final offer that I had taken back to them.

"Q. Okay. So, a counterproposal came out of that?

"A. Yes, sir.

"Q. Okay. Did that counterproposal -- Did you present that counterproposal to the lieutenants

and the patrolmen?

"A. Yes, I did.

"Q. Okay. Arid were you told by both bodies that what they had sent in prior to that was tt eir

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final offer?

"A. I think [*13] they either stated it was their final offer or they already had a tentativeagreement; something along those two lines. I tliink maybe that they said that we have atentative agreement; that is our final offer; that's -- we're not negotiating further." (Tr. 333-

335),

Very specifically, R.C. 4117.10(B) HN 27provides, in pertinent part:

^* * * The legislative body must approve or reject the submission as a whole, ***."

The statute makes no provision for counterproposals on the part of the legislative body. Theevidence clearly established that there was no vote ever taken relative to acceptance,rejection or counterproposal during the "executive session." Upon the record, as it was madebefore the State Employment Relations Board, there can be no determination whether aquorum of council and, as was previously testified to, a quorum calls for five members, evervoted to approve, reject or counterpropose the tentative agreement submitted. We seriouslyquestion the right of a legislative body in labor negotiations to indulge in counterproposals. Itis obvious from a reading of the statutes, pertinent to public employees collective bargaining,that H"` -37the "public employer" who engages in negotiations [*141 is separate and apartfrom the legislative body which in this instance was the city council. It is obvious that labornegotiations are administrative actions separate and apart from legislative actions. R.C.

731.05 provides:

"The powers of the legislative authority of a city shall be legislatlve only, it shall perform no

administrative duties, * * *."

The foregoing reasoning leads us to the conclusion that, pursuant to R.C. 4117.10, when atentative agreement is submitted to a legislative body, the legislative body may do one oftwo things. It may only approve or reject the tentative proposal within 30 days ofsubmission. Failure to so act by the legislative body shall trigger a deemed approval of the

tentative agreement.

It is our conclusion that the findings of the State Employment Re(ations Board, as to thefacts, was supported by substantial evidence on the record as a whole and that the CommonPleas Court was in error in reversing the decision of the board.

Accordingly, the judgment of the Common Pleas Court is reversed and judgment is enteredaffirming the decision of the order of the State Employment Relations Board signed and filedon August 23rd, 1989, finding that the [*15] tentative agreement submitted to the CityCouncil of Martins Ferry were approved as the result of the failure of the legislative body toact within 30 days after the tentative agreement had been submitted.

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1987 Ohio App. LEXIS 10088, *

East Palestine City School District Board of Education, Appellant-Appellee, Cross-Appellant, v.State Employment Relations Board, et af, Appellee-Appellants, Cross-Appellee

No. 87-C-6

Court of Appeals of Ohio, Seventh Appellate District, Columbiana County

1987 OhioApp. LEXIS 10088

December 15, 1987, Decided

PRIOR }OISTORY: [*1] Civii Appeal from Columbiana County Common Pleas Court Case

No. 86-CIV-404.

DISPO9I"l"IOM: Reversed in part and Affirmed in part.

CASE 5UMMARY:

PROCEDURAL POSTURE: The State Employment Relations Board found that appellantboard of education committed an unfair labor practice by refusing to sign a collectivebargaining agreement. The board of education was ordered to cease and desist and topost a notice to employees. The Columbiana County Common Pleas Court (Ohio) reversedthat portion of the decision requiring the posting of notices, but otherwise affirmed thedecision. Both parties appealed.

OVERVIEW: Cross-appellant union filed an unfair labor practice charge against the boardof education. The trial court found, in accordance with the decree of the employmentrelations board, that the board of education had committed an unfair labor practice byrefusing to sign a collective bargaining agreement. The trial court, however, struck thatportion of the employment relations board's order requiring the posting of certain noticeson the ground that the notices would serve no useful purposes since their posting was sofar removed from the time period involved. The court stated that even if the posting ofnotices would have served no useful purpose, the order was well within the authority ofthe employment relations board at the time that it issued. Accordingly, that portion of thetrial court's judgment reversing the posting requirement was reversed. The court alsoconcluded that the board of education had approved the tentative agreement as submittedto them by their negotiator, and, because they did not accept or reject this finalagreement within the 30-day period as provided by law, the agreement was properly

deemed approved.

OUTCOME; The court reversed the trial court's judgment to the extent that it hadreversed the empioyment relations board's order requiring posting of the specific notice.The court affirmed the remainder of the judgment.

CORE TERMS: notice, tentative agreement, posting, affirmative action, board ofeducation, negotiation, labor practice, ratified, unfair, negotiator, desist, cease, bargaining

difi de ,agreement, legislative body, superintendent, corrections, violating, seniority, mo

tli ,anschool board, hearing officer, useful purposes, proposed agreement, cross-appeeffectuate, enforcing, omissions, approve, tabling, notice of appeal

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EXHIBIT


LEXISNEXIS(R) HEADNOTESCivil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions >

Exclusive JurisdictionGovernments > Local Governments > Administrative BoardsLabor & Empioyment Law > Collective Bargaining & Labor Relations > Unfair Labor

Practices > Jurisdictionxxiyit is provided, in part, by Ohio Rev. Code Ann. § 4117.12 that if the State

Empioyment Relations Board, upon a preponderance of the evidence, believes thatany person named in a complaint has engaged in an unfair labor practice theBoard shall, amongst other things, "take such affirmative action as will effectuatethe poficies of Ohio Rev. Code Ann. § 4117. The foregoing, of course, is in additionto the service of an order on the person requiring the cessation from unfair laborpractices. Any order and any affirmative action taken by the Board is subject tojudicial review pursuant to Ohio Rev. Code Ann. § 4117.13. Any person aggrievedby any final order of the Boai-d may appeal that order to the Court of CommonPleas of any county where the unfair labor practice was alleged to have takenplace or where the person resides or transacts business. The Common Pleas Courtappealed to has exclusive jurisdiction, amongst other things, to make and enter adecree enforcing, modifying, and enforcing as so modified, or setting aside inwhole or in part the order of the board. Ohio Rev. Code Ann. § 4117.13(D).

Governments > Local Governments > Administrative BoardsLabor & Employment Law > Affirmative Action > Court & Government Imposed PiansLabor & Employment Law > Posting & RecordkeepingxM2yThe posting of notices, advising the employees of the State Employment Relations

Board's order and announcing the readiness of the employer to obey it, is withinthe authority conferred on the Boai-d and is such affirmative action as willeffectuate the policies of the act.

Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to BargainLabor & Empioyment Law > Employment Relationships > General Overview

Hus± It is provided by Ohio Rev. Code Ann. § 4117.10(B) that where approval of aproposed contract is required of a iegislative body, that legislative body mustapprove or reject the submitted contract as a whole. The statute goes on toprovide that the submitted contract shall be deemed approved if the legislativebody fails to act within 30 days after the agreement has been submitted.

cOUNSEL: Thomas C.B. Letson, For Appellant-Appellee Cross-Appellant.

Anthony J. Celebrezze, Jr., Attorney General, Susan Hayest Kozlowski, Asst. AttorneyGeneral, For Appellee-Appellant Cross-Appellee, State Employment Relations Board.

]UDGES: Cox, P,J., concurs. Donofrio, J., concurs.

OPINION BY: O'NEILL

OPINION

OPINION

O'NEILL, J.

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After pursuing proper administrative procedures, the State Employment Relations Board, onMarch 20, 1986, issued an order which read as follows:

"Before Chairman Day, vice Chairman Sheehan, and Board Member Fix; February 26, 1986.

"On March 14, 1985, the East Palestine Education Association filed an unfair labor practicecharge against the East Palestine City School District Board of Education (Respondent).Pursuant to Ohio Revised Code Section 4117.12, the Board conducted an investigation of thecharge and found Probable cause to believe that an unfair labor practice was committed.Subsequently, a complaint was issued alleging that the Respondent had violated OhioRevised Code Section 4117.11 (A)(1) and (A)(5) by: refusing to sign [*2] a collectivebargaining agreement which had been approved by the Employee Organization andsubmitted to Respondent after Respondent had failed to timely reject such agreement. Thematter was heard by a Board hearing officer.

"The Board had reviewed the record, the hearing officer's recommendation, exceptions to therecommendation, and responses. For the reasons set forth in the attached opinion,incorporated by reference, the Board approves the hearing officer's findings of fact, approvesthe conclusions of iaw and orders the Respondent to:

"A. Cease and desist from:

"Interfering with, restraining or coercing employees in the exercise of the rights guaranteedin Chapter 4117. of the Revised Codd and otherwise violating Ohio Revised Code Section

4117.11 (A)(1); and

"Refusing to bargaining collectively with the exclusive representative of its employees andotherwise violating Revised Code 4117.11(A)(5).

"B. Take the following affirmative action:

"Post for sixty (6)(sic) days in all school buildings the Notice to Employees furnished by theBoard stating that the East Palestine Board of Education shall cease and desist from theactions set forth in Paragraph A[*3] and shall take the affirmative action set forth in

Paragraph B.

"Respondent and Intervenor shall immediately execute the collective bargaining agreementratified by the East Palestine Education Association and presented to the Board of Educationin November 1984. The agreement became effective by operation of law in )anuary 1985.

"It is so ordered."

A timeiy notice of appeal was filed with the Common Pleas Court of Columbiana Countydirected to this order. In disposition of that appeal the Common Pleas Court, on April 2,1986, filed its final judgment entry, the order of which entry reads as follows:

"For the reasons referred to above, this Court finds the issues on appeal in favor of the StateEmployment Relations Board, and orders the East Palestine City School District Board of

Education to:

"A. Cease and desist from:

"Interfering with, restraining or coercing employees in the exercise of the rights guaranteedin Chapter 4117, of the Revised Code and otherwise violating Ohio Revised Code Section4117.17.(A)(1); and

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"Refusing to bargain collectively with the exclusive representative of its employees andotherwise violating Revised Code Section 4117.11(A)(5).

"B. [*4] To take the following affirmative action:

"The Board of Education and the East Palestine Education Association shall immediatelyexecute that collective bargaining agreement ratified by the East Palestine EducationAssociation and presented to the Board of Education in November 1984, which becameeffective by operation of law in 7anuary 1985.

"C. This court, in reviewing the matter and in construing Ohio Revised Code Section 4117.22,flnds that this Chapter should be liberally construed for the accomplishments and thepurposes of promoting orderly and constructive relationships between all public employers

and their employees.

"In so construing such Section, this Court takes exception to the order of the StateEmployment Relations Board requiring that a notice to employees be posted in all schoolbuildings, stating that the East Palestine Board of Education shall cease and desist from the

actions referred to.

""This court believes that to enforce such said order would frustrate the purposes of the actat this time, since it is so far removed from the time period involved, and further, becausethis court believes its order upholding the other relevant issues before [*5] the StateEmployment Relations Board effectively accomplishes what the Statute intended.

"Further, it does not appear from a reading of the record as a whole that the East PalestineCity School District, Board of Education purposely attempted to violate the sections of theRevised Code referred to herein, but perhaps the same was rather inadvertent since the lawwas relatively new and as yet untested at the time during which negotiations were taking

place.

"CONCLUSION

"For the foregoing reasons and subject to the foregoing opinion, the decision of the StateEmployment Relations Board is upheld except where modified as Indicated.

"Costs taxed against East Palestine City Schooi District, Board of Education."

The State Employment Relations Board filed a timely notice of appeal with this court directedto that final judgment of the Common Pleas Court and the Board of Education filed a timelycross-appeal directed to that notice of appeal.

The appellant, before this court, complains that the Common Pleas Court erred in modifyingthe remedy imposed by the State Employment Relations Board to the effect that the Boardhad ordered the posting of a notice of its order [*6] and that portion of the Board's orderwas modified and, in effect, done away with by the Common Pleas Court.

MNgVYt is provided, in part, by R.C. 4117.12 that if the State Employment Relations Board,upon a preponderance of the evidence, believes that any person named in a complaint hasengaged in an unfair labor practice the Board shall, amongst other things, "take suchaffirmative action * * * as will effectuate the policies of Chapter 4117. of the Revised Code."The foregoing, of course, is in addition to the service of an order on the person requiring thecessation from unfair labor practices. Any order and any affirmative action taken by theBoard is subject to judicial review pursuant to R.C. 4117.13. Any person aggrieved by anyfinal order of the Board may appea( that order to the Court of Common Pleas of any county

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where the unfair labor practice was alleged to have taken place or where the person residesor transacts business, The Common Pleas Court appealed to has exclusive jurisdiction,amongst other things, "to make and enter a decree enforcing, modifying, and enforcing as somodified, or setting aside in whole or in part the order of the board." ( R.C. 4117.13(D)). Inthe [*7] subject case the court appealed to upheld and entered a.decree enforcing the orderappealed, but modified that order by striking therefrom the affirmative action ordered by theState Employment Relations Board, It was the expressed opinion of the judge of the CommonPleas Court that the posting of a notice, stating that the Board should cease and desist fromunfair labor practices, would serve no useful purposes since to order at that time, the postingof such notice, was so far removed from the time period involved that it would serve nouseful purpose. This action, by the Common Pleas Court, was not a modification as such isallowed by law of the order of the State Employment Relations Board, but was rather asubstitution by the Common Pleas Judge of his judgment for the judgment of the Board. TheCommon Pleas Court did not find that the Board was not authorized by law to order theposting of notice, nor did the Court find that the Board had abused Its discretion in orderingthe posting of notice, When the Common Pleas Judge came on to consider for finaldisposition the appeal involved, it was up to him to consider only the facts as they existed atthe time the Board issued its order. [*8] Presumptively, when the board issued its order, itwas the final decision of the Board that the requirement of posting was an affirmative actionwhich would effectuate the policies of Chapter 4117. of the Revised Code. It has previouslybeen ruled by the United States Supreme Court that N^12Tthe posting of notices, advising theemployees of the Board's order and announcing the readiness of the employer to obey it, iswithin the authority conferred on the Board and is such afFirmative action as will effectuate,

the polides of the act. National Labor Relations Board v. Pennsylvania Greyhound Lines(1938), 303 U.S. 261, 268. Though this court might agree with the Common pleas Judge thatthe posting of notice, due to the passage of time and due to other circumutances, wouldserve no useful purpose, we are bound by authority greater than ours to reach the conclusionthat that order was well within the authority of the Board at the time that it issued it and thatthat order further enhances and serves the purposes of Chapter 4117 of the Ohio Revised

Code.

Accordingly, that portion of the final judgment of the Common Pleas Court, which reversedthe order of the Board requiring posting [*9] of the specific notice, is reversed, and thatportion of the order of the Board is reinstated.

In approaching the assignments of error of the cross-appellant, it Is perhaps well if we setforth a history of the case leading up to the decision of the State Employment RelationsBoard, The East Palestine City School District Board of Education and the East PalestineEducation Association were parties to a collective bargaining agreement wherein the schoolboard recognized the association as the representative of all of the certificated personnelwhether on leave, on a per diem basis, employed or to be employed, excluding thesuperintendent and all other administrators, On July 26, 1984, these parties commencednegotiations on non-economic issues. Prior to that date, on June 18, 1984, at the Boardmeeting of the Board of Education, the Board engaged Attorney Thomas C.D. Letson anddesignated him as the negotiator for the Board and, further, that Attorney Letson wasresponsible for negotiations in the collective bargaining process. Mr. Kevin Whitby wasselected and served as spokesman for the association. BY September, 1984, the Parties,engaged in negotiations, had reached agreement on [*10] all but a few issues and bothparties agreed to request a federal mediator. One of the items under discussiori, but notagreed to in September, was the definition of seniority which was to be included in the newagreement. On October 30, 1.984, a meeting was held between the Board representative, theassociation representative, and the chief mediator. It was undisputed and, in fact, stipulatedthat at that meeting, on October 30, 1984, an agreement on all items was reached includingproposed language defining seniority as had been drafted by Attorney Letson, the board'snegotiator. On November 8, 1984, the association met and prepared a tentative agreementthal was presented to the membership of the association and ratified by the membership on

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November 13, 19B4. A copy of this ratified tentative agreement was mailed to AttorneyLetson and to the superintendent of the board of education. The ratified tentative agreementcame on for consideration by the board at a meeting held November 20, 1984. It wasannounced by the board that they were tabling the proposed agreement due to typographicalerrors and omisslons. On November 28, 1984, the association met and made corrections intypographical [*11] errors and omissions in the agreement. On November 20, 1984, thecorrected copy of the ratified agreement was delivered to the superintendent for the board.The board subsequently met on December 3, 1984 but, at that time, did not consider thetentative agreement nor from that time forward did the board take any further action relativeto the tentative agreement. N1v-+ZIt is provided by R.C. 4117.10(B) that where approval of aproposed contract is required of a legislative body, that legislative body must approve orreject the submitted contract as a whole. The statute goes on to provide that the submittedcontract shall be deemed approved if the legislative body fails to act within 30 days after theagreement has been submitted. It was concluded by the State Employment Relations Boardthat, since the board of education had failed to act upon the subject proposed tentativeagreement within 30 days from its submission, that, as a matter of law, it would be deemedthat the proposed tentative agreement was approved by the legislative body, the board ofeducation. This conciusion, by the State Employment Relations Board, was affirmed andupheld by the Common Pleas Court and it is contended by [*12] the cross-appellant, theboard of education, that that holding by the Common Pleas Court was error,

It is argued by the appellant that it was the belief of the school board that no finalizedagreement had been reached but rather that the parties were still in the process ofnegotiation. It is rather difficult, under the evidence, to accept this argument. AttorneyLetson and Mr. Whitby, the negotiators involved, had reached an agreement relative to aproper definition of seniority. The proposed definition was submitted by Mr. Whitby to hisbody, the East Palestine Education Association, and accepted by them. Attorney Letsonsubmitted the agreed upon definition to the superintendent of the board of education, who, inturn, polled the school board member. The school board tabled all of the proposals includingthe proposed seniorlty cross-language. It Is argued by the/appellant that this action oftabling the proposed agreement ambunted to a rejection and that, pursuant to statute at thetime that this tabling procedure was followed, there should have been a return to thenegotiation table. As a part of the exhibits submitted before the State Employment RelationsBoard appears Exhibit [*13] No. 10 which is a copy of the minutes of the meeting of theboard of education held November 20, 1984. These minutes reflect that, at that meeting, amotion was made that the board adopt ttie following resolution:

"Be it resolved that the East Palestine City School District Board of Education does herebytable the proposal of the East Palestine Education Association until all typos and correctionscan be ironed out. And further that the board instruct Mr. Letson to contact Mr. Whitby, theEPEA representative, and make the necessary corrections of typos and omissions."

A sensible reading of this adopted motion cannot lead to the conclusion that the board ofeducation was rejecting the proposed agreement. It obviously was setting it aside for thepurpose of typos and corrections, nothing more.

It is our conclusion, upon the review of the record of this case, that the negotiatorsrepresenting each one of the parties involved in these labor negotiations, had reached atentative agreement. It is our further conclusion that the education association had approvedthe tentative agreement as submitted to them by ther negotiator. That this agreement, ascorrected, was presented to the [*14] board of education on November 29, 1984, It is ourfurther conclusion that the board did not accept or reject this final agreement within the 30-day period as provided by law and that, thus, pursuant to law, this submitted agreement

shall be found to have been approved.

Judgment of the Common Pleas Court, relative to this issue raised by the cross-appellant, is

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affirmed.

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men e^> .^ tate mp oyS._'_^,̂ ,'.^J 65 East State Street, 12'" Floor F ^ g'^ 2^^)i

lations Boardt RE I`^fi'^^

RECE:IVErState of Ohio

Columbus, Ohio 43215-4213(614)644-8573

htto7lwww serbstate.oh.us/200D%20forms7ULPlULPC.P^F

Case No.

UNFAIR LABOR PRACTICE CHARGE

INSTRUCTIONS: Fi{e one original and one copy of this fonn with the State Employment Relations Board at the aboveSee Ohio Administrative Code Rule 4117-1-02.e is broughtthe charhti .gw omnsaddress. Serve one copy on the party aga

If more space is required for any item, attach additional sheets; please number the items accordingly.NOTE: If you wish to file unfair labor practice charges against both the employer and the union, then separate Unfair Labor

the form(s) to be filed against the union, fill out alI sections of this fonn. For theFt or.Practice Charge forms must be flled ouform(s) to be filed against the employer, fII out all sections except section four, which is used to identify the employer forchar es ffled a ainst the union or its representative(s .1. Party Filing Charge: ( Check One)

3 Employee Organization/Union qEmployee ^Employer q Other

Name:Municipal Construction Equipment Operators Labor Council ("MCEOLC")Address: Telephone: work (216)241-3737

c/o Persky, Shapiro, 1410 Terminal Tower, 50 Public Square home ( )

City, County, State, Zip: F^'( 216) 241-0921

Cleveland, OH 441132. Name of Person Representing the Party Filing Charge:(Representative must fife a Notice of Appearance form.)Stewart D. Roll, Attorney for MCEOLCAddress:

Telephone:(216) 241-3737

1410 Terminal Tower, 50 Public SquareCity, State, Zip: F^'

(216) 241-0921Cleveland, OH 441133. Party Against Whom This Charge is Brought: ( Check Onty One)

q Employee OrganizationfUnion q Employee ^ Employer q Other

Name:Cleveland, OhioAddress:c/o John Dileno, Erieview Tower - 20th FI., 1301 E. 9th St

Telephone:(216) 696-7600

City, County, State, Zip: Fax:( 216) 696-2038

Cleveland, OH 441144. Employer: (I( differenf from ifem 1 or3)

Address:Teiephone:( )

City, County, State, Zip: Fax:( )

Basis of Charge: The party against whom this charge is brought was engaged in or is engaged in unfair Iabor practices5 .within the meaning of Ohio Revised Code Section 4117.11. ( Check appropriate subsections only.)

Charges against employers: (A)(1) i] (A)(2) q (A)(3) 0 (A)(4) q (A)(5) q (A)(6) q (A)(7) q (A)(8) q

Charges against unions or (B)(1) q (B)(2) q (B)(3) q (B)(4) q (B)(5) q (B)(6) q (B)(7) q (B)($) q

. employees: Page 1 of 2ERB10Q5 Revise

Unfair Labor rractice cnar e mrco iwo -vw,i6. Statement of Facts: Provide a clear and concise statement of the facts constituting the alleged unfair labor practice(s),

(If morechar ethi t g .o eseincluding the names of individuals involved and the dates and places of the occurrences giving rspace is required, add additional sheets.)MCEOLC incorporates by reference the 1/21/04 letter and material attached as Exhibit "1" to this Unfair

Practice Charge. MCEOLC contends that contrary to section 4117(A)(1), Cleveland interfered with the

exercise of its rights guaranteed by ORC Chapter 4117 by advising MCEOLC that Cleveland agreed

to the Collective Bargaining Agreement (CBA) attached as Exhibit "A" to Exhibit "1", resulting in

MCEOLC's ratification of Exhibit "A" on December 9, 2003, and then telling MCEOLC about six (6)

weeks later that Cleveland wanted to make substantive changes to that Agreement. Cleveland's

administration also refused to present that CBA to Cleveland's legislative body for approval unless

MCEOLC agreed to those belated substantive changes. MCEOLC contends that contrary to section

4117(A)(3), Cleveland also discriminated against MCEOLC members by refusing to reference in the CBA

equipment over which MCEOLC would have craft jurisdiction; but Cleveland did that for other unions.

A failure to provide the above information coutd result in the aharge being dismissed for failure to provide a cloar and concise statement.

DECLARATION

I declare that I have read the contents of this Unfair Labor Practice Charge and that the statements it contains are true andcorrect to the best of my knowledge and belief.

To distinguish originals, please do not use black ink for signatures.

February 4, 2004

Signature of ersol Attesting to Content of Form Date

Stewart D. Roll, Attorney for MCEOLCPrint or Type Name

THIS UNFAIR LABOR PRACTICE CHARGE WILL NOT BE ACCEPTED FOR FILING UNLESS THE PROOF OF SERVICE IS FULLYRS AN ORIGINAL SIGNATURE OF A REPRESENTATIVE OF THE PARTY FILING THE CHARGE.COMPLETED AND BEA

PROOF OF SERVICE

I certify that an exact copy of the foregoing Unfair Labor Practice Charge has been sent or delivered to:

John Dileno, Erieview Tower - 20th FI., 1301 E. 9th St(Name and complete address of party against whom ihis charge is brought)

Cleveland, OH 44114

By [DRegular U.S. Mail qCertified U.S. Mail F^Hand Delivery q Other

this 4th (day) of FebruarV (month), 2004 (year).

Stewart D. Roll, Attorney for MCEOLC

Signature of Persbn Attesting to Service of Form Print or Type Name

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