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Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
State ex. rel. Service Employees
International Union/
District 1199, WV/KY/OH, Judge
The Healthcare and Social Service
Union, CTW, CLC Case No.
1395 Dublin Road
Columbus, Ohio 43215,
Relator,
v
State Employment Relations Board
65 East State Street, Suite 1200
Columbus, OH 43215,
-and-
The State of Ohio,
Department of Rehabilitation
and Correction
4545 Fisher Road, Suite D
Columbus, OH 43228,
Respondents.
Verified Complaint for a Writ of Mandamus
Relator Service Employees International Union/ District 1199 (“SEIU” or the “Union’”)
brings this action pursuant to O.R.C. § 2731.02 seeking a writ of mandamus to compel
Respondent Statement Employment Relations Board (“SERB”) to issue a finding of probable
cause that the Ohio Department of Rehabilitation and Correction (“ODRC” or the “Employer”)
committed an unfair labor practice (“ULP”) when it refused to bargain the implementation or
effects of implementing body-worn-cameras as required by O.R.C. Chapter 4117
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I. Jurisdiction
This Court is vested with jurisdiction pursuant to Article IV, Section 4(B) of the Ohio
Constitution and O.R.C. § 2731.02.
IL. The Parties
Relator SEIU is an “employee organization” as defined by O.R.C. § 4117.01(D). SEIU is
recognized by SERB as the exclusive representative of, among others, parole officers
employed by the Adult Parole Authority (“APA”), a Division of ODRC for the State of
Ohio
Respondent SERB is an Ohio administrative agency created by O.R.C. § 4117.02.
Generally, that agency is responsible for overseeing and administering Ohio’s collective
bargaining statute, Chapter 4117, for public agencies and labor unions across the state. As
it concerns this matter, SERB is responsible for receiving charges of a ULP; investigating
those charges; and disposing of those charges consistent with Chapter 4117.
Respondent State of Ohio, ODRC is a public employer as defined by O.R.C. §
4117.01(B). ODRC employs, among others, parole officers working within the APA.
Til. Factual Allegations
The Collective Bargaining Agreement Between SEIU and the State of Ohio
SEIU and the State of Ohio are currently parties to a collective bargaining agreement
(“CBA”) with effective dates of September 8, 2021 — April 30, 2024. The CBA is
attached hereto as Exhibit A.
Parole officers working within the APA are included in the bargaining unit covered by
the CBA referenced in Paragraph 5
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That CBA does not mention body-worn-cameras (“BWCs”)—a camera with audio and
video recording capabilities that is designed to be worn as part of a uniform, primarily by
law enforcement officers.
Neither does any provision in the CBA expressly allow the State to implement BWCs for
bargaining unit members.
The CBA contains a provision allowing the parties to engage in mid-term bargaining.
The Employer’s Unilateral Implementation of BWCs and BWC Policy
10. On or about December 6, 2021, the Employer announced its intention to outfit employees
of ODRC with BWCs, including parole officers within the APA.
11 On or about that same date, the Employer shared a draft BWC policy with SEIU that it
planned to unilaterally promulgate. The Employer did not bargain or attempt to bargain
the draft BWC policy with SEIU prior to the December 6, 2021 notice. That policy is
attached hereto as Exhibit B
12 That policy applied to, among others, SEIU bargaining unit members employed as parole
officers within the APA.
13 The BWCs chosen by the Employer record a member’s entire shift, even if that member
has not manually activated the BWC to create a recording. In other words, generally
speaking, if a BWC is powered on, then it is recording. It is only when the BWC is
powered off or placed in “sleep” mode that recording stops. And in fact, the BWCs can
record up to 18 hours of footage before prior footage is overwritten. As of October 10,
2022, such footage also includes audio
14 Most BWCs currently on the market also have “live-streaming” capabilities where the
employer can view a live feed from a remote location. Generally, the technology allows
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that feature to be used without the wearer’s knowledge or consent. Currently, the BWCs
used by ODRC do not have this feature, however, such a feature is only ever a software
or hardware update away.
15 While BWCs can be powerful tools for achieving transparency and accountability, the
devices also raise significant privacy concerns—both for the wearer and any third party
captured in a recording. Moreover, given the constant-recording, BWCs have a major
impact on members’ terms and conditions of employment. That is especially so where, as
here, the Employer has made clear that the BWCs will be used for disciplinary purposes
and, in part, to monitor employees.
The Employer’s Refusal to Bargain the Implementation or Effects of the BWCs
16. The Employer scheduled a meeting with SEIU for December 8, 2021, to discuss BWCs
and the draft BWC policy; however, that meeting was cancelled after two APA officers/
SEIU members were fired upon by a suspect while serving a warrant. That suspect shot
and critically injured a U.S. Marshal, which required the APA officers to fire in self-
defense. The suspect was struck and did not survive
17 The draft BWC policy was finalized and went into effect on December 23, 2021.
18. On or about January 4, 2022, SEIU served a formal demand to bargain on the Employer
regarding the use and implementation of BWCs. The demand to bargain is attached
hereto as Exhibit C
19 The December 8, 2021 meeting was rescheduled and held on January 11, 2022. At that
meeting—which was held several weeks after the BWC policy went into effect—the
Employer explicitly announced that it would not bargain the BWC policy and that it did
not believe it was required to bargain the policy. Instead, the meeting was
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“informational” in nature and, according to the Employer, “allowed the Union the
opportunity to ask questions and provide feedback.”
20. On January 14, 2022, the Office of Collective Bargaining (“OCB”)—the chief labor
relations entity for the State of Ohio—teplied to the Union’s demand to bargain,
declaring that it believed implementation of BWCs was already permitted under the
parties’ current CBA. And while OCB claimed that the Union’s feedback and input
would be considered, it otherwise failed to respond to the Union’s demand to bargain.
That response is attached hereto as Exhibit D
21 Another meeting was held between the parties on February 1, 2022. There, the BWCs
were demonstrated, and the Union had the opportunity to ask questions about how the
BWCs worked; but nonetheless, the Employer again emphasized that it was not
bargaining the policy and that it believed it did not have to bargain the policy.
22. To date, the Employer has refused to bargain either the implementation or effects of the
BWCs.
SEIU’s Timely Filing of ULP After the Employer’s Refusal to Bargain
23 On or about January 18, 2022, SEIU timely filed a ULP alleging that the Employer
violated O.R.C. §§ 4117.11(A)(1) and (A)(5) by unilaterally implementing BWCs and
refusing to bargain that implementation or the effects thereof. That ULP and its
attachments are attached hereto as Exhibit E
24, On or about January 25, 2022, SERB sent SEIU and the Employer a Request for
Information regarding the allegations raised in the ULP
25 The ULP was assigned to Case Number 2022-ULP-01-0007
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26. The parties subsequently filed responses to SERB’s Request for Information. SEIU’s
response is attached hereto as Exhibit F; the State’s response is attached hereto as Exhibit
G.
27 In its response, the State noted that it held “informational” meetings with the Union and
answered Union questions regarding the BWCs. It also claimed that it was receptive to
any feedback the Union may have had regarding its already issued, unilaterally
promulgated policy. But the State also made clear that it did not believe it was required to
bargain the implementation or effects of the BWCs, and nowhere does it expressly claim
bargaining ever occurred—nor could it as the State explicitly conveyed to the Union at
both meetings that it was not bargaining the issue.
28. Notwithstanding the above, SERB dismissed the ULP on April 28, 2022, finding that the
State’s informational meetings and purported openness to consider Union feedback
regarding BWCs constituted “bargaining” as defined by O.R.C Chapter 4117. SERB’s
investigative memorandum and dismissal are attached hereto as Exhibit H.
SEIU’S Timely Filing of Motion for Reconsideration
29 On May 27, 2022, SEIU timely filed a Motion for Reconsideration with SERB pertaining
to its dismissal of the ULP in Case No. 2022-ULP-01-0007. That Motion is attached
hereto as Exhibit I
2
3 0. The State filed its brief in opposition, again arguing that its openness to consider the
Union’s feedback met any obligation it had, and that in any case it was not required to
bargain the implementation or effects of BWCs. That brief is attached hereto as Exhibit J.
31 SERB denied the Union’s Motion for Reconsideration on July 21, 2022. SERB blanketly
denied the Union’s Motion, failing to even consider its administrative decision issued just
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a year prior in which it ruled that an employer violated Chapter 4117 by failing to bargain
the implementation and effects of surveillance cameras installed in both public and
private portions of a firehouse. SERB further failed to acknowledge that the State at no
time expressly asserted that it bargained either the implementation or effects of BWCs.
Indeed, the State has always maintained the contrary—that it was not required to do so.
SERB’s denial is attached hereto as Exhibit K.
IV. Claim for Relief — Writ of Mandamus
2
3 2. Relator realleges and incorporates all prior paragraphs as if fully restated herein
33 SERB’s determination that no probable cause existed in Case No. 2022-ULP-01-0007
was an abuse of discretion, erroneous and contrary to law.
34, In fact, there was probable cause that the State committed a violation of O.R.C. §§
4117.11(A)(1) and (A)(5) in Case No. 2022-ULP-01-0007
SEIU has a clear legal right to have SERB find probable cause of a statutory violation; to
issue a complaint; and to set a hearing.
Likewise, SERB has a clear legal duty to find that probable cause of a ULP existed in
Case No. 2022-ULP-01-0007; to issue a complaint; and to hold a hearing.
SERB’s abuse of discretion may be redressed by mandamus.
38 SEIU has no adequate remedy at law.
WHEREFORE, SEIU is entitled to a writ of mandamus compelling SERB to:
Vacate the denial of SEIU’s Motion for Reconsideration in Case No. 2022-ULP-01-0007;
Vacate the dismissal of the ULP in Case No. 2022-ULP-01-0007;
Reinstate the ULP in Case No. 2022-ULP-01-0007;
Issue a complaint for the ULP in Case No. 2022-ULP-01-0007;
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5. Hold a hearing in Case No. 2022-ULP-01-0007.
SEIU further requests that it be awarded its costs and attorneys’ fees expended herein and
such other relief as is equitable
Respectfully submitted,
By: /s/ Lathan J. Lipperman
Lathan J. Lipperman (0095523)
Nicole Rager Wannemacher (0078095)
Harshman & Wannemacher
4683 Winterset Drive
Columbus, Ohio 43220
Telephone: 614-573-6944
Fax: 614-573-6948
Emails: ilipperman@ihcands com
nwannemacher@hecands.com
Attorneys for SEIU District 1199
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569
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Verification of Relator SEIU
STATE OF OHIO )
) ss:
COUNTY OF FRANKLIN )
I, Josh Norris, being first duly sworn and cautioned, depose and state as follows:
1 Tam over the age of 18.
2 I am the Executive Vice President of SEIU 1199, a position I have held for no less
than five years.
3 I have read the facts set forth in the above Complaint, and those facts are true and
accurate to the best of my knowledge and belief.
FURTHER AFFIANT SAYETH NAUGHT.
Josh Norris
2
//
Sworn to and subscribed in my preseneé this 27" day of October 2022.
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Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - R98 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO State ex. rel. Service Employees International Union/ District 1199, WV/KY/OH, Judge The Healthcare and Social Service Union, CTW, CLC Case No. 1395 Dublin Road Columbus, Ohio 43215, Relator, v State Employment Relations Board 65 East State Street, Suite 1200 Columbus, OH 43215, -and- The State of Ohio, Department of Rehabilitation and Correction 4545 Fisher Road, Suite D Columbus, OH 43228, Respondents. Verified Complaint for a Writ of Mandamus Relator Service Employees International Union/ District 1199 (“SEIU” or the “Union’”) brings this action pursuant to O.R.C. § 2731.02 seeking a writ of mandamus to compel Respondent Statement Employment Relations Board (“SERB”) to issue a finding of probable cause that the Ohio Department of Rehabilitation and Correction (“ODRC” or the “Employer”) committed an unfair labor practice (“ULP”) when it refused to bargain the implementation or effects of implementing body-worn-cameras as required by O.R.C. Chapter 4117 Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - R9 I. Jurisdiction This Court is vested with jurisdiction pursuant to Article IV, Section 4(B) of the Ohio Constitution and O.R.C. § 2731.02. IL. The Parties Relator SEIU is an “employee organization” as defined by O.R.C. § 4117.01(D). SEIU is recognized by SERB as the exclusive representative of, among others, parole officers employed by the Adult Parole Authority (“APA”), a Division of ODRC for the State of Ohio Respondent SERB is an Ohio administrative agency created by O.R.C. § 4117.02. Generally, that agency is responsible for overseeing and administering Ohio’s collective bargaining statute, Chapter 4117, for public agencies and labor unions across the state. As it concerns this matter, SERB is responsible for receiving charges of a ULP; investigating those charges; and disposing of those charges consistent with Chapter 4117. Respondent State of Ohio, ODRC is a public employer as defined by O.R.C. § 4117.01(B). ODRC employs, among others, parole officers working within the APA. Til. Factual Allegations The Collective Bargaining Agreement Between SEIU and the State of Ohio SEIU and the State of Ohio are currently parties to a collective bargaining agreement (“CBA”) with effective dates of September 8, 2021 — April 30, 2024. The CBA is attached hereto as Exhibit A. Parole officers working within the APA are included in the bargaining unit covered by the CBA referenced in Paragraph 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - Sl That CBA does not mention body-worn-cameras (“BWCs”)—a camera with audio and video recording capabilities that is designed to be worn as part of a uniform, primarily by law enforcement officers. Neither does any provision in the CBA expressly allow the State to implement BWCs for bargaining unit members. The CBA contains a provision allowing the parties to engage in mid-term bargaining. The Employer’s Unilateral Implementation of BWCs and BWC Policy 10. On or about December 6, 2021, the Employer announced its intention to outfit employees of ODRC with BWCs, including parole officers within the APA. 11 On or about that same date, the Employer shared a draft BWC policy with SEIU that it planned to unilaterally promulgate. The Employer did not bargain or attempt to bargain the draft BWC policy with SEIU prior to the December 6, 2021 notice. That policy is attached hereto as Exhibit B 12 That policy applied to, among others, SEIU bargaining unit members employed as parole officers within the APA. 13 The BWCs chosen by the Employer record a member’s entire shift, even if that member has not manually activated the BWC to create a recording. In other words, generally speaking, if a BWC is powered on, then it is recording. It is only when the BWC is powered off or placed in “sleep” mode that recording stops. And in fact, the BWCs can record up to 18 hours of footage before prior footage is overwritten. As of October 10, 2022, such footage also includes audio 14 Most BWCs currently on the market also have “live-streaming” capabilities where the employer can view a live feed from a remote location. Generally, the technology allows Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - S2 that feature to be used without the wearer’s knowledge or consent. Currently, the BWCs used by ODRC do not have this feature, however, such a feature is only ever a software or hardware update away. 15 While BWCs can be powerful tools for achieving transparency and accountability, the devices also raise significant privacy concerns—both for the wearer and any third party captured in a recording. Moreover, given the constant-recording, BWCs have a major impact on members’ terms and conditions of employment. That is especially so where, as here, the Employer has made clear that the BWCs will be used for disciplinary purposes and, in part, to monitor employees. The Employer’s Refusal to Bargain the Implementation or Effects of the BWCs 16. The Employer scheduled a meeting with SEIU for December 8, 2021, to discuss BWCs and the draft BWC policy; however, that meeting was cancelled after two APA officers/ SEIU members were fired upon by a suspect while serving a warrant. That suspect shot and critically injured a U.S. Marshal, which required the APA officers to fire in self- defense. The suspect was struck and did not survive 17 The draft BWC policy was finalized and went into effect on December 23, 2021. 18. On or about January 4, 2022, SEIU served a formal demand to bargain on the Employer regarding the use and implementation of BWCs. The demand to bargain is attached hereto as Exhibit C 19 The December 8, 2021 meeting was rescheduled and held on January 11, 2022. At that meeting—which was held several weeks after the BWC policy went into effect—the Employer explicitly announced that it would not bargain the BWC policy and that it did not believe it was required to bargain the policy. Instead, the meeting was Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - S3 “informational” in nature and, according to the Employer, “allowed the Union the opportunity to ask questions and provide feedback.” 20. On January 14, 2022, the Office of Collective Bargaining (“OCB”)—the chief labor relations entity for the State of Ohio—teplied to the Union’s demand to bargain, declaring that it believed implementation of BWCs was already permitted under the parties’ current CBA. And while OCB claimed that the Union’s feedback and input would be considered, it otherwise failed to respond to the Union’s demand to bargain. That response is attached hereto as Exhibit D 21 Another meeting was held between the parties on February 1, 2022. There, the BWCs were demonstrated, and the Union had the opportunity to ask questions about how the BWCs worked; but nonetheless, the Employer again emphasized that it was not bargaining the policy and that it believed it did not have to bargain the policy. 22. To date, the Employer has refused to bargain either the implementation or effects of the BWCs. SEIU’s Timely Filing of ULP After the Employer’s Refusal to Bargain 23 On or about January 18, 2022, SEIU timely filed a ULP alleging that the Employer violated O.R.C. §§ 4117.11(A)(1) and (A)(5) by unilaterally implementing BWCs and refusing to bargain that implementation or the effects thereof. That ULP and its attachments are attached hereto as Exhibit E 24, On or about January 25, 2022, SERB sent SEIU and the Employer a Request for Information regarding the allegations raised in the ULP 25 The ULP was assigned to Case Number 2022-ULP-01-0007 Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - S4 26. The parties subsequently filed responses to SERB’s Request for Information. SEIU’s response is attached hereto as Exhibit F; the State’s response is attached hereto as Exhibit G. 27 In its response, the State noted that it held “informational” meetings with the Union and answered Union questions regarding the BWCs. It also claimed that it was receptive to any feedback the Union may have had regarding its already issued, unilaterally promulgated policy. But the State also made clear that it did not believe it was required to bargain the implementation or effects of the BWCs, and nowhere does it expressly claim bargaining ever occurred—nor could it as the State explicitly conveyed to the Union at both meetings that it was not bargaining the issue. 28. Notwithstanding the above, SERB dismissed the ULP on April 28, 2022, finding that the State’s informational meetings and purported openness to consider Union feedback regarding BWCs constituted “bargaining” as defined by O.R.C Chapter 4117. SERB’s investigative memorandum and dismissal are attached hereto as Exhibit H. SEIU’S Timely Filing of Motion for Reconsideration 29 On May 27, 2022, SEIU timely filed a Motion for Reconsideration with SERB pertaining to its dismissal of the ULP in Case No. 2022-ULP-01-0007. That Motion is attached hereto as Exhibit I 2 3 0. The State filed its brief in opposition, again arguing that its openness to consider the Union’s feedback met any obligation it had, and that in any case it was not required to bargain the implementation or effects of BWCs. That brief is attached hereto as Exhibit J. 31 SERB denied the Union’s Motion for Reconsideration on July 21, 2022. SERB blanketly denied the Union’s Motion, failing to even consider its administrative decision issued just Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - S5 a year prior in which it ruled that an employer violated Chapter 4117 by failing to bargain the implementation and effects of surveillance cameras installed in both public and private portions of a firehouse. SERB further failed to acknowledge that the State at no time expressly asserted that it bargained either the implementation or effects of BWCs. Indeed, the State has always maintained the contrary—that it was not required to do so. SERB’s denial is attached hereto as Exhibit K. IV. Claim for Relief — Writ of Mandamus 2 3 2. Relator realleges and incorporates all prior paragraphs as if fully restated herein 33 SERB’s determination that no probable cause existed in Case No. 2022-ULP-01-0007 was an abuse of discretion, erroneous and contrary to law. 34, In fact, there was probable cause that the State committed a violation of O.R.C. §§ 4117.11(A)(1) and (A)(5) in Case No. 2022-ULP-01-0007 SEIU has a clear legal right to have SERB find probable cause of a statutory violation; to issue a complaint; and to set a hearing. Likewise, SERB has a clear legal duty to find that probable cause of a ULP existed in Case No. 2022-ULP-01-0007; to issue a complaint; and to hold a hearing. SERB’s abuse of discretion may be redressed by mandamus. 38 SEIU has no adequate remedy at law. WHEREFORE, SEIU is entitled to a writ of mandamus compelling SERB to: Vacate the denial of SEIU’s Motion for Reconsideration in Case No. 2022-ULP-01-0007; Vacate the dismissal of the ULP in Case No. 2022-ULP-01-0007; Reinstate the ULP in Case No. 2022-ULP-01-0007; Issue a complaint for the ULP in Case No. 2022-ULP-01-0007; Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - Sé 5. Hold a hearing in Case No. 2022-ULP-01-0007. SEIU further requests that it be awarded its costs and attorneys’ fees expended herein and such other relief as is equitable Respectfully submitted, By: /s/ Lathan J. Lipperman Lathan J. Lipperman (0095523) Nicole Rager Wannemacher (0078095) Harshman & Wannemacher 4683 Winterset Drive Columbus, Ohio 43220 Telephone: 614-573-6944 Fax: 614-573-6948 Emails: ilipperman@ihcands com nwannemacher@hecands.com Attorneys for SEIU District 1199 Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Oct 28 1:37 PM-22CV007569 0G142 - S7 Verification of Relator SEIU STATE OF OHIO ) ) ss: COUNTY OF FRANKLIN ) I, Josh Norris, being first duly sworn and cautioned, depose and state as follows: 1 Tam over the age of 18. 2 I am the Executive Vice President of SEIU 1199, a position I have held for no less than five years. 3 I have read the facts set forth in the above Complaint, and those facts are true and accurate to the best of my knowledge and belief. FURTHER AFFIANT SAYETH NAUGHT. Josh Norris 2 // Sworn to and subscribed in my preseneé this 27" day of October 2022. suse hy s ahe $4 Lin, ss FR, SX “6, Lathan Lew J, Lipper, STATE! OF OHO En aad —\ PUBLIC +(epectseeveaeel “2 My has10 Notary Public sec, A7BRC. a% Fay OF anda oe