Motion to Augment (name extension) in CV-23-973287| Trellis.Law

On January 03, 2023 a Notice of Appeal was filed involving a dispute between and in the District Court of Cuyahoga County.

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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Common Pleas

New Case Electronically Filed: NOTICE OF APPEAL WORK. COMP ADMIN APPEAL
January 3,2023 14:45

By: JON M. DILENO 0040836

Confirmation Nbr. 2738622

CITY OF CLEVELAND CV 23 973287

vs.
Judge: RICHARD A. BELL
STATE EMPLOYMENT RELATIONS BOARD, ET AL.

Pages Filed: 115

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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

CITY OF CLEVELAND. Case No
601 Lakeside Avenue
Cleveland, Ohio 44114

Appellant, NOTICE OF APPEAL
(Of SERB Order & Opinion 2022-002
v, pursuant to R.C. 4117.13(D))

STATE EMPLOYMENT :
RELATIONS BOARD, :
65 East State Street, 12th Floor :
Columbus, Ohio 43215 :

and :

CLEVELAND ASSOCIATION OF :
RESCUE EMPLOYEES, :
1303 West 58th Street :
Cleveland, Ohio 44102 :

Appellees. :

Appellant, the City of Cleveland (“City”) hereby gives notice of its appeal, pursuant to

R.C. 4117.13(D), of the State Employment Relations Board’s (“Board”) Order and Opinion

(SERB Opinion 2022-002) issued on August 10, 2022 in Case No. 2021-ULP-08-0129, which is

attached hereto as Exhibit 1. The basis for the appeal is that the Board’s Order and Opinion is not

supported by substantial evidence and is not in accordance with the law. This includes the Board’s

erroneous finding that Appellee Cleveland Association of Rescue Employees (“CARE”) did not

waive its rights to bargain with respect to the hiring of part-time paramedics in the City’s

Emergency Medical Service (“EMS”) via the language in the parties’ collective bargaining

agreement (attached as Exhibit 2) and via CARE’s actions preceding the filing of the underlying

Unfair Labor Practice Charge. Furthermore, the Board erroneously concluded that the City did

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not bargain in good faith over its part-time paramedic hiring plan, despite the evidence showing

that the City provided CARE with notice of its tentative plan, met with CARE multiple times to

discuss, and made proposals with concessions based upon issues raised by CARE. Finally, the

Board improperly ordered the City to bargain over “the reassignment of bargaining unit work to

non-bargaining unit part-time employees,” despite the unrefuted evidence that the City did not hire

any part-time paramedics.

Respectfully submitted,

/s/ Jon M. Dileno____________
Jon M. Dileno (#0040836)
jmd@zrlaw.com
David P. Frantz (#0091352)
dpf@zrlaw.com
Zashin & Rich Co., L.P.A.
950 Main Ave., 4th Floor
Cleveland, OH 44113
T: 216/696-4441
F: 216/696-1618

Attorneys for Appellants

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-2-
CERTIFICATE OF SERVICE

I certify that on January 3, 2023 a copy of the foregoing document was filed with the

Court’s electronic filing system and also filed with SERB and served upon all parties listed below

via electronic mail:

State Employment Relations Board
ULP@SERB .ohio. gov

Lori J. Friedman, Esq.
Assistant Ohio Attorney General
Labor Relations Unit
615 West Superior Avenue - 11th Floor
Cleveland, OH 44113-1899
(216) 787-4196
Lori.friedman@OhioAGO.gov

James Cochran, Esq.
Assistant Ohio Attorney General
Labor Relations Unit
615 West Superior Avenue - 11th Floor
Cleveland, OH 44113-1899
(216) 777-8041
James.cochran@OhioAGO. gov

Counselfor Appellee-Complainant

Ryan J. Lemmerbrock, Esq.
Brooks W. Boron, Esq.
Muskovitz & Lemmerbrock, LLC
1621 Euclid Avenue, Suite 1750
Cleveland, OH 44115
(216) 621-2020
lemmerbrock@mllabor.com
boron@mllabor.com

Counselfor Appellee-Intervenor

/s/ Jon M. Dileno____________
Jon M. Dileno (#0040836)
jmd@zrlaw.com

One of the Attorneys for Appellants

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-3-
SERB OPINION 2022-002

STATE OF OHIO
BEFORE THE STATE EMPLOYMENT RELATIONS BOARD
In the Matter of

State Employment Relations Board,
EXHIBIT

Complainant,
1
V.

City of Cleveland,

Respondent.

Case No. 2021-ULP-08-0129

ORDER
(OPINION ATTACHED)

Before Chair Zimpher, Vice Chair Mills, and Board Member Walter: December
19, 2022.

On August 27, 2021 Cleveland Association of Rescue Employees, I.L.A., Local
1975 (CARE/Union/Charging Party/lntervenor) filed an unfair labor practice charge
against City of Cleveland (City/Charged Party/Respondent). CARE alleges that the City
violated Sections 4117.11(A)(1) and (A)(5) of the Ohio Revised Code by unilaterally
assigning bargaining unit work to non-bargaining unit part-time employees and by
unilaterally requiring new EMS employees to sign a Cost Reimbursement Agreement,
which affects their wages, hours and terms and conditions of employment.

On November 18, 2021, the State Employment Relations Board (SERB/Board)
found probable cause existed to believe a violation had occurred and directed the
matter to unfair labor practice mediation for a period not to exceed sixty (60) days, with
instructions to the mediator to report back to the Board at the conclusion of the
mediation or the mediation period, whichever occurs first. In the event that the
mediation process was unsuccessful, the Board authorized the issuance of a Complaint
and directed that a hearing be held to determine whether Charged Party violated R.C.
4117.11(A)(1) and (A)(5), by unilaterally assigning bargaining unit work to non
bargaining unit part-time employees and by unilaterally requiring new EMS employees
to sign a Cost Reimbursement Agreement, which affects their wages, hours, and terms
and conditions of employment.

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ORDER
Case No. 2021-ULP-08-0129
December 19, 2022
Page 2 of 3

settlement agreement entered into by the parties, which disposed of the parties’ dispute
over the Cost Reimbursement Agreements. On August 30, 2022 the Board granted
Complainant’s Motion for Approval of Partial Settlement Agreement Concerning City’s
Cost Reimbursement Agreements. Subsequently, an evidentiary hearing over the
remaining issue of assigning bargaining unit work to non-bargaining unit part-time
employees was held before the assigned Administrative Law Judge (ALJ) on August 23,
2022, and parties submitted post-hearing briefs on October 17, 2022.

Subsequently, the ALJ issued a Proposed Order dated October 28, 2022,
recommending that the Board find that Respondent violated Section 4117.11(A)(1) and
(A)(5) of the Ohio Revised Code by refusing to bargain its decision to assign bargaining
unit work to non-bargaining unit part-time employees. Respondent filed exceptions to
the Proposed Order on November 21, 2022, and responses to the Exceptions were filed
on November 30, 2022.

After reviewing the Unfair Labor Practice Charge, Complaint, Answer, Proposed
Order, Exceptions, Responses to Exceptions, and the entirety of the information
contained in the record, the Board adopts the Findings of Fact, Analysis and
Discussion, and Conclusions of Law in the ALJ’s Proposed Order, incorporated herein
by reference, finding that Respondent, City of Cleveland, violated section 4117.11 (A)(1)
and (A)(5) of the Ohio Revised Code.

The City of Cleveland is ordered to:

A. CEASE AND DESIST FROM:

(1) Refusing to bargain collectively with the exclusive representative of
certain of its employees.

B. TAKE THE FOLLOWING AFFIRMATIVE ACTION:

(1) Bargain in good faith with the Cleveland Association of Rescue
Employees, I.L.A., Local 1975 over the reassignment of bargaining
unit work to non-bargaining unit part-time employees.

(2) Post for sixty (60) days in all the usual and customary posting
locations where bargaining-unit employees represented by the
Cleveland Association of Rescue Employees, I.L.A., Local 1975
work, the Notice to Employees furnished by the State Employment
Relations Board stating that the City of Cleveland shall cease and
desist from the actions set forth in paragraph (A) and shall take the
affirmative action set forth in paragraph (B);

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ORDER
Case No. 2021-ULP-08-0129
December 19, 2022
Page 3 of 3

(3) Notify the State Employment Relations Board in writing within
twenty (20) calendar days from the date that this Order becomes
final of the steps that have been taken to comply therewith.

IT IS SO ORDERED

ZIMPHER, Chair; MILLS, Vice Chair, and WALTER, Board Member, concur.

TIME AND METHOD TO PERFECT AN APPEAL

This is a final appealable Order. You are hereby notified that an appeal from this Order
may be perfected, pursuant to Ohio Revised Code Section 4117.13(D) by filing a notice
of appeal setting forth the order appealed from and the grounds of appeal with the court
of common pleas in the county where the unfair labor practice in question was alleged
to have been engaged in, or where the person resides or transacts business, within
fifteen days after the mailing of the State Employment Relations Board’s Order. A copy
of the notice of appeal must also be filed with the State Employment Relations Board, at
65 East State Street, 12th Floor, Columbus, Ohio 43215-4213, pursuant to Ohio
Administrative Code Rule 4117-7-07.

PROOF OF SERVICE

I certify that a copy of this document was served upon each party by certified mail,
return receipt requested, and upon each party’s representative by ordinary mail, this
19th day of December, 2022.

ERIN E. CONN
ADMINISTRATIVE OFFICER

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SERB OPINION 2022-002

STATE OF OHIO
BEFORE THE STATE EMPLOYMENT RELATIONS BOARD

STATE EMPLOYMENT RELATIONS BOARD,

Complainant, Case No. 2021-ULP-08-0129

v.
October 28, 2022
CITY OF CLEVELAND,

Respondent. JEANNETTE E. GUNN
Administrative Law Judge

PROPOSED ORDER

INTRODUCTION

A Complaint was issued on June 16, 2022. A pre-hearing was held on July 29,
2022 and the parties submitted pre-hearing statements, exhibits and joint stipulations of
fact. On August 22, 2022 a Motion for Approval of Partial Settlement Agreement was
filed with the Board by counsel for Complainant. The Motion set forth, and included, a
settlement agreement entered into by the parties, which disposed of the parties’ dispute
over the Cost Reimbursement Agreements. On August 30, 2022 the Board granted

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PROPOSED ORDER CASE NO. 2021-ULP-08-0129
October 28, 2022
Page 2 of 10

Complainant’s Motion for Approval of Partial Settlement Agreement Concerning City's
Cost Reimbursement Agreements.

The parties' dispute over the issue of assigning bargaining unit work to non
bargaining unit part-time employees is stillpending before the assigned Administrative
Law Judge. An evidentiary hearing was held on August 23, 2022, and parties submitted
post-hearing briefs on October 17, 2022

II. ISSUE

Did the City violate Sections 4117.11(A)(1) and (A)(5) of the Ohio Revised Code
when itrefused to bargain its decision to assign bargaining unit work to non-bargaining
unit part-time employees.

III. FINDINGS OF FACT1

1. Respondent, the City of Cleveland (City/Charged Party), is a “public employer” as
defined by R.C. 4117.01(B). (S. 1)

2. Intervenor, the Cleveland Association of Rescue Employees (CARE), is an
“employee organization” as defined by R.C. 4117.01(D). (S. 2)

3. CARE is the exclusive bargaining representative for all full-time Emergency
Medical Technicians, Emergency Medical Dispatchers, Paramedics, and
Sergeants employed by Respondent. (S. 3)

4. On August 27, 2021, CARE filed an unfair labor practice (ULP) charge with
Complainant against Respondent. (S. 4) CARE alleges that the City violated
R.C. 4117.11(A)(1) and (A)(5) by unilaterally assigning bargaining unit work to
non-bargaining unit part-time employees. (S. 4, Jt. Exh.1)

5. CARE and the City are parties to a collective bargaining agreement (CBA)
effective from April 1, 2019 through March 31, 2022. The City and CARE have
continued to operate under the terms of the 2019-2022 CBA. (S. 5)

6. The CBA contains a grievance arbitration process that is final and binding. (S. 6)

1 All references to the Joint Stipulations of Fact are indicated parenthetically by “S." followed by the
stipulation number. All references to the Joint Exhibits are indicated parenthetically by "Jt. Exh.’’ followed
by the exhibit number. References to stipulations and exhibits in the Findings of Fact are intended solely
for convenience and are not intended to suggest that such references are the sole support in the record
for that related finding of fact.

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PROPOSED ORDER CASE NO. 2021-ULP-08-0129
October 28, 2022
Page 3 of 10

7. There are approximately 249 members in the CARE bargaining unit. Of those
members, there are 165 Paramedics, 31 EMTs, 55 EMDs, and 31 Sergeants.
196 bargaining unit members are considered "field personnel.” (S. 7)

8. Paramedics and EMTs are the first responders to emergency medical response
calls. Paramedics and EMTs initiate patient care, starting with documentation
and taking a patient’s vitals. Depending on the call, paramedics are responsible
for extricating the patient and starting basic life support. If necessaryA
paramedics will continue with advanced life support. These CARE bargaining
unit members continue care until transferring the patient to the hospital. (S. 8)

9. Paramedics and EMTs in the CARE bargaining unit are the City employees
exclusively responsible for responding to emergencies in the City’s ambulances,
transporting patients in those ambulances, and providing patient care during
transport. Any other employees or personnel performing EMS response and
transport work for the City in the past have been in limited circumstances and
with the written agreement of CARE.

10. The Division of EMS does not currently have any part-time employees and has
never used part-time employees to perform emergency response work. (S. 9)

11. The City’s Division of Police, Division of Fire, and Division of EMS are all staffed
by full-time employees. (S. 10)

12. On June 17, 2021 EMS Commissioner Nicole Carlton (Commissioner Carlton)
and City Safety Director Karrie Howard (Safety Director Howard) met with CARE
representatives for a Labor Management Conference. Commissioner Carlton
and Safety Director Howard discussed the City’s plan to hire part-time paramedic
employees to perform CARE bargaining unit work (City’s Plan). CARE asked the
City to negotiate its decision, but the City refused, stating that itdid not have a
legal obligation to negotiate with the Union regarding the City’s Plan and its
effects. (S. 11, Jt. Exh. 6 and 7)

13. On June 18, 2021 Timothy Sommerfelt, Secretary for CARE, emailed
Commissioner Carlton and Director Howard and requested that his email be
considered CARE’s “formal request that the City reconsider its refusal to
negotiate and that we bargain.” (Jt. Exh. 6)

14. On June 24, 2021 Commissioner Carlton responded to Secretary Sommerfelt's
email in a letter. Commissioner Carlton’s letter indicated that the City was willing
to discuss the City’s Plan and its effects with representatives of CARE and
consider feedback or concerns but was not willing to discuss modifications to the
existing contract. (S. 13, Jt. Exh. 7)

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PROPOSED ORDER CASE NO. 2021-ULP-08-0129
October 28, 2022
Page 4 of 10

15. On June 30, 2021 Commissioner Carlton sent an email following up on her June
24, 2021 correspondence and noting that she had not yet received a response
from CARE. (S. 14, Jt. Exh. 6)

16. On June 30, 2021 CARE’s counsel responded to Commissioner Carlton’s letter
stating that the City’s intended transfer of CARE bargaining unit work to non
bargaining unit employees was a mandatory subject of bargaining, and
reiterating its request that the City bargain its decision. CARE's response
indicated that its willingness to bargain was not pre-conditioned on reopening the
Collective Bargaining Agreement. (S. 15, Jt.Exh. 8)

17. On July 2, 2021 City's counsel responded to CARE’s June 30, 2021 letter.
Counsel’s letter stated again the City’s position that it was not obligated to
bargain over the City’s Plan or its effects. CARE’s counsel responded to City’s
counsel’s correspondence on July 2, 2021 and the parties' counsels exchanged
several emails. (S. 16 and 17, Jt. Exh. 9 and 10)

18. On July 9, 2021 CARE’s counsel sent correspondence to City’s counsel
requesting to meet and bargain the City’s Plan to transfer CARE bargaining unit
work to part-time employees. CARE expressed its intent to bargain in good faith
but noted that it had no interest in meeting with the City if the meeting was only
for the purpose of commenting on the City’s decision. (S. 18, Jt. Exh. 11)

19. On July 9, 2021 City's counsel responded to CARE's letter and agreed to meet
with CARE in good faith and “call itnegotiations,” but noted that the City would
not waive its argument that it had no legal obligation to negotiate with CARE. (S.
19, Jt. Exh. 12)

20. Between July 12 and July 19, 2021 City’s counsel and CARE's counsel
exchanged multiple emails regarding meeting on July 21, 2021 on the issue of
part-time employees. (S. 20)

21. On July 21,2021 CARE and the City met to discuss the City’s Plan. (S. 21)

22. On July 22, 2021 CARE’s counsel emailed City's counsel to reiterate CARE’s
position that any agreed upon terms be reduced to writing and enforceable. On
July 28, 2021 CARE’s counsel sent a follow-up email to City’s counsel noting that
CARE declined to continue discussions on the next scheduled meeting date if the
City continued to oppose reducing agreed upon terms to writing that are subject
to enforcement. (S. 22, Jt. Exh. 15)

23. On July 29, 2021 City’s counsel sent a one-page proposal to CARE presenting
its original proposal with modifications. The City agreed to enter into a
Memorandum of Understanding (MOU) outlining specific obligations in exchange
for CARE’s agreement to not file a grievance, unfair labor practice charge or

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PROPOSED ORDER CASE NO. 2021-ULP-08-0129
October 28, 2022
Page 5 of 10

lawsuit challenging a plan implemented consistent with the terms of the MOU,
with CARE reacquiring its right to challenge the City’s plan should the City vary
from the terms of the MOU. The City maintained its position that its plan to hire
and utilize part-time EMT-Paramedics did not impact specific terms of the parties’
collective bargaining agreement and refused to relinquish its right to hire part
time employees. (S. 23, Jt. Exh. 16)

24. On July 29, 2021 CARE’s counsel notified City’s counsel that he had forwarded
and discussed the City’s proposal with CARE and that CARE declined to meet on
July 30, 2021 due to its belief that continued discussions would be unproductive
because the City had no intention of bargaining the matter in good faith. (S. 24,
Jt. Exh. 17)

25. On July 29, 2021 City’s counsel acknowledged CARE’s response and stated that
the City would nevertheless keep union leadership apprised of any developments
regarding the part-time employee issue. (S. 25, Jt. Exh. 17)

26. On August 13, 2021 City’s counsel and CARE’s counsel further exchanged
emails on the part-time employee issue. (S. 26)

27. On September 10, 2021 the City’s Civil Service Commission approved and
posted the part-time EMT-Paramedic position in the Division of EMS, but
rescinded its posting that same day. (S. 27 and 28, Jt. Exh. 18 and 19)

28. On September 13, 2021 City’s counsel and CARE’s counsel further exchanged
emails on the part-time employee issue. (S. 29, Jt. Exh. 19)

29. On or about September 24, 2021 the City’s Civil Service Commission reposted
the part-time EMT-Paramedic position in the Division of EMS. The duties
contained in the posting for the part-time EMT-Paramedic position are those
performed by CARE bargaining unit members. (S. 30, Jt. Exh. 20).

30. The City has not hired any part-time EMS employees. There is no active posting
for part-time paramedics, nor is there an eligible list for the City to hire from.

IV. ANALYSIS AND DISCUSSION

The City is alleged to have violated Sections 4117.11(A)(1) and (A)(5) of the
Ohio Revised Code, which state, in relevant part:

(A) It is an unfair labor practice for a public employer, its agents or
representatives to:

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PROPOSED ORDER CASE NO. 2021-ULP-08-0129
October 28, 2022
Page 6 of 10

(1) Interfere with, restrain or coerce employees in the exercise of the rights
guaranteed in Chapter 4117 of the Ohio Revised Code or an employee
organization in the selection of its representative for the purposes of
collective bargaining or the adjustment of grievances.

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

***

Complainant has the burden to demonstrate by a preponderance of the evidence
that an unfair labor practice has been committed. R.C. 4117.12(B)(3). Based upon the
analysis herein, the stipulations of the parties and the evidence contained in the record,
Complainant has met its burden of proof regarding its allegation that the City violated
R.C. 4117.11(A)(1) and (A)(5) by refusing to bargain its unilateral decision to assign
bargaining unit work to non-bargaining unit part-time employees.

The Supreme Court of Ohio has stated that R.C. 4117.08(A) sets forth the
mandatory subjects of collective bargaining while R.C. 4117.08(C) involves permissive
subjects of collective bargaining. Bd. of Trustees v. Frat. Order, Police, 146 Ohio App.
3d 456 (Ohio Ct. App. 2001), citing Cincinnati v. Ohio Council 8, American Fedn. of
State, Cty., Mun. Emp., AFL-CIO (1991), 61 Ohio St.3d 658, 663-665. CARE’S unfair
labor practice charge challenged the City’s refusal to bargain its decision to reassign
bargaining unit work to non-bargaining unit part-time employees.

Section 4117.08 of the Ohio Revised Code provides in pertinent part:

(A) All matters pertaining to wages, hours, or terms and other conditions of
employment and the continuation, modification, or deletion of an existing
provision of a collective bargaining agreement are subject to collective
bargaining between the public employer and the exclusive representative,
except as otherwise specified in this section ....

Case law is clear and well-established that a public employer’s reassignment of
bargaining unit work to non-bargaining unit personnel is a mandatory subject of
bargaining under R.C. 4117.08, and that a public employer’s refusal to bargain the
reassignment of bargaining unit work to non-bargaining unit employees is an unfair
labor practice under R.C. 4117.11(A)(1) and (A)(5). Lorain City School Dist. Bd. of
Educ. v. SERB, 40 Ohio St.3d 257, 262 (1988); Cleveland Bd. of Educ. v. SERB, 129
Ohio App. 3d 671, 1998 SERB 4-57 (Sth Dist. Ct. App.); In re City of Green, SERB
2014-001 (2-20-2014); SERB v. Canton City School Dist. Bd. of Educ., (11-23-94), aff'd

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PROPOSED ORDER CASE NO. 2021-ULP-08-0129
October 28, 2022
Page 7 of 10

1996 SERB 4-11, 1996 WL 34403622 (Sth Dist. Ct. App,); In re City of Akron, SERB 99
014 (6-24-99).

The City asserts nevertheless that SERB should dismiss this matter, and bases
its assertion on three affirmative defenses:

A. The Matter is not ripe because the City has not hired part-time
employees.

To be justiciable, a controversy must be ripe for review. Keller v. Columbus, 100
Ohio St.3d 192. The City asserts that this matter is not ripe for adjudication because it
has not hired any part-time EMS employees and because there is neither an active
posting for the position, nor isthere an eligible list. CARE argues that the City has not
withdrawn or rescinded itsPlan and has indicated its intent to proceed.

The basic principle of ripeness stems from the concept that judicial machinery
should be conserved for problems which are real or present and imminent, not
squandered on problems which are abstract or hypothetical or remote. State ex ret.
Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 694 N.E.2d 459 (1988). The
record indicates that the City has taken substantial action toward putting its Plan into
effect. The City’s Civil Service Commission (CSC) approved the position, its
requirements and compensation. The CSC approved the assignment of bargaining unit
work to employees in the part-time position. The CSC posted the position and accepted
applications. While the City has not yet taken the final step of hiring part-time
employees, implementation of its Plan is present and imminent, making this matter ripe.

B. CARE waived any bargaining rights through the negotiated language
oftheCBA.

The City asserts that its decision to hire part-time employees is a management
right and that CARE waived its right to bargain over the exercise of management rights
through the negotiated language of the CBA. SERB considered and rejected this same
argument in a recent matter between the parties involving the City’s use of dash
camera2, holding both that the “zipper clause” did not constitute a waiver of bargaining
rights3 and that the general language in the third paragraph of Article 3 of the CBA “is
not a specific nor a clear and unmistakable waiver of CARE’S statutory right to bargain .
n

In the instant matter, CARE’s unfair labor practice charge does not challenge the
City’s management right to hire part-time employees. Accordingly, the question of

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Notice of Appeal: CV-23-973287

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