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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
State ex. rel. Service Employees )
International Union, District 1199 ) Case No. 22CV007569
Relator, Judge Jeffrey M. Brown
-V-
State Employment Relations
Board, et al.,
Respondents.
Amended Brief of Relator SEIU District 1199
Lathan J. Lipperman (0095523) Dave Yost (0056290)
Nicole Rager Wannemacher (0078095) Ohio Attorney General
Harshman & Wannemacher
4683 Winterset Drive Lori J. Friedman (0018480)
Columbus, Ohio 43220 Principal Assistant Attorney General
Telephone: 614-573-6944 Executive Agencies Section
Fax: 614-573-6948 Labor Relations Unit
Emails: 615 W. Superior Avenue, 11th Floor
Cleveland, Ohio 44113-1899
Telephone: (216) 787-4196
Counsel for Relator SEIU District 1199 Fax: (866) 478-7:
E: Lory 363
YL GO. gay
Counsel for Respondent State
Employment Relations Board
Scott H. DeHart (0095463)
Jonathan J. Downes (0009905)
Zashin and Rich Co., L.P.A.
17 S. High Street, Suite 900
Columbus, OH 43215
614-224-4411 (tel)
614-224-443 3 (fax)
& ay a | lid@erla OM.
Counsel for Respondent State of Ohio,
Department of Rehabilitation and
Corrections
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I Introduction
This case presents the question of whether SERB abused its discretion by failing to
find probable cause that the Ohio Department of Rehabilitation and Correction (“ODRC”
or “Employer”) violated O.R.C. §§ 4117.11(A)(1) and (A)(5) when it unilaterally
implemented body worn cameras and an accompanying policy—mandatory subjects of
bargaining—without negotiating with the Service Employees International Union,
District 1199 (“Union”).
Any mandatory subject of bargaining must be negotiated with the union.
Implementation and the effects of implementing body worn cameras (“BWCs”) materially
impact terms and conditions of employment and are therefore mandatory subjects of
bargaining. SERB has held that installing surveillance cameras and the effects of
installing dash cameras are mandatory subjects of bargaining.
But here ODRC unilaterally implemented BWCs and an accompanying policy then
refused to bargain the policy despite the Union’s formal demand to do so. Accordingly,
the Union filed a ULP. Contrary to ODRC’s own assertions that it refused to bargain the
policy, the State Employment Relations Board (“SERB”) found that ODRC had negotiated
BWCs and met its statutory duties.
By failing to find probable cause that the Employer violated Chapter 4117 by
refusing to negotiate a mandatory subject of bargaining, SERB abused its discretion. The
Union is therefore entitled to a writ of mandamus compelling a hearing.
Il. Statement of Facts
A. The parties and their collective bargaining history
ODRC is a public employer as defined by O.R.C. § 4117.01(B). ODRC is responsible
for overseeing Ohio’s prison and parole systems—the latter of which falls under the Adult
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Parole Authority (“APA”), a division of ODRC. Parole officers working for the APA are
bargaining unit members covered by the collective bargaining agreement (“CBA”)
between ODRC and SEIU, parole officers’ exclusive representative as defined by O.R.C. §
4117.01(D). The dispute here arose under the current CBA, effective from September 8,
2021 — April 30, 2024. Certified Record (“CR”) Part 2, p. 174. The CBA has a midterm
bargaining provision should any changes to the CBA be necessary. CR Part 2, p. 23.
Nothing in the CBA expressly allows the Employer to implement BWCs. While the
CBA allows the Employer to “make reasonable use of technology to assure that employees
are appropriately engaged in work activities while on work time,” and provides that
employees do not enjoy an expectation of privacy, nothing within the CBA provides for
the use of BWCs. CR Part 2, p. 150.
B. Overview of body-worn cameras
BWCs are powerful data collection devices. This is especially true for the Axon 3
body camera, the BWC chosen by ODRC.1 The Axon 3 stores up to 18 hours of footage.?
Axon BWCs have a “pre-buffer” (also known as a “lookback”) feature that can record
anywhere from 30 to 120 seconds before the record button is pressed. ODRC has
programmed the BWC lookback to include audio. CR Part 1, p. 65. The Axon 3 BWC also
records whenever the BWC is powered on, even if the wearer never presses the record
button. That technology is known as either “record after the fact” or “video recall.”4 Axon
1 Ohio equipping prison, parole staff with body cameras, 10TV (Janu:
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13, 2022),
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3 Axon Body 3, Axon, <3 (last visited
January 10, 2023).
4Id.
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BWCs also have livestreaming technology, which allows an employer to view a live feed
of the wearer’s camera, even without the wearer’s consent. The BWCs come with built-in
GPS tracking devices, allowing real time tracking. Finally, these BWCs can be
programmed to automatically begin recording—no different than if the record button is
pressed—when a certain event occurs, such as the unholstering of a weapon. 7 This is
known as an “automatic activation” or trigger. CR Part 1, p. 61.
C. The unilateral implementation of BWCs and BWC policy
On December 6, 2021, the Employer announced its plan to implement BWCs. CR
Part 1, p. 75. It also sent SEIU a draft of its BWC policy—which it had created without any
negotiation with the Union. The Employer scheduled a meeting with the Union for
December 8, 2021, to “discuss BWCs at APA.” CR Part 1, p. 26. The Union had to
reschedule that meeting after two APA officers were in a shootout with a violent felon. Id.
The Employer unilaterally implemented its BWC policy on December 23, 2021. CR
Part 1, p. 61. Critically, the policy allows the Employer to use BWC recordings to discipline
members. CR Part 1, p. 68. On January 4, 2022, the Union filed a formal demand to
bargain the “use and implementation” of BWCs. CR Part 1, p. 16. The December 8t»
meeting was rescheduled for January 11, 2022—weeks after the BWC policy went into
effect. CR Part 1, p. 61. According to the Employer, that “meeting was informational” and
gave the Union the chance “to ask questions and provide feedback.” Id. (emphasis added).
There, the Employer refused to bargain over BWCs and claimed it was not required to do
5 Id.
ld.
7 Axon Signal Vehicle, Axon, 3 Love (last
visited January 10, 2023).
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so. It reiterated that refusal several days later through the Office of Collective Bargaining,
while noting that it would consider any Union “input” or “feedback CR Part 1, p. 6.
The parties met again in the beginning of February. There, the Employer
demonstrated the BWCs and allowed the Union to ask technological questions about the
BWCs, but again the Employer refused to bargain the implementation or use of the BWCs.
CR Part 1, p. 26. To date, the Employer has never bargained any aspect of the BWCs.
D. SEIU’s ULP filing over the Employer’s failure to bargain BWCs
The Union filed an unfair labor practice (ULP) charge on January 18, 2022 alleging
violations of O.R.C. §§ 4117.11(A)(1) and (A)(5). CR Part 1, pp. 3-4. The Union argued that
under Chapter 4117 of the Ohio Revised Code and SERB’s own precedent, the Employer
flouted its obligation to bargain. CR Part 1, pp. 91-99. In contrast, the Employer claimed
it was not required to bargain, but that it had been willing to meet with the Union for
“informational” purposes and to answer questions. CR Part 1, p. 26. The Employer was
careful, however, to never assert that such “informational” meetings or question-and-
answer sessions constituted bargaining.
Notwithstanding the Employer’s admission that bargaining never occurred, SERB
found the Employer “bargained the [BWC] policy with the Union on multiple occasions”
and dismissed the ULP. CR Part 1, p. 112. SEIU timely filed a Motion for Reconsideration
(CR Part 1, p. 181), which SERB dismissed on July 21, 2022. CR Part 1, pp. 310-313.
Til. Law and Argument
A. Legal Standard
A ULP may be filed by either an employer or the union and alleges that the non-
filing party violated Ohio’s collective bargaining statute. Upon the timely filing of a ULP,
Ohio law requires SERB to “investigate the charge.” O.R.C. § 4117.12(B). If after such
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investigation there is probable cause that a party has committed a violation, then SERB
must “issue a complaint” and “conduct a hearing concerning the charge.” Id.
A probable cause determination by SERB is not reviewable by direct appeal. Ohio
Ass'n v. Dayton City Sch. Dist. Bd. of Educ., 59 Ohio St. 3d 159, 160 (1991). Instead, the
appropriate remedy is a mandamus action. State ex rel. SEIU v. State Empl. Rels. Bd., 81
Ohio St. 3d 173, 179 (1998). To be entitled to a writ of mandamus, a relator must show
“() that he or she has a clear legal right to the relief prayed for, (2) that respondents are
under a corresponding clear legal duty to perform the requested acts, and (3) that relator
has no plain and adequate legal remedy.” State ex rel. Ohio Ass’n of Pub. Sch. Employees
/ AFSCME v. State Emp. Rels. Bd., 64 Ohio St. 3d 149, 151 (1992) (citation omitted).
A trial court reviews SERB’s probable cause determination under an abuse of
discretion standard. State ex rel. Alben v. State Empl. Rels. Bd., 76 Ohio St. 3d 133, 135
(1996). An “abuse of discretion implies an attitude that is unreasonable, arbitrary, or
unconscionable.” Id. (citation omitted). Put another way, SERB abuses its discretion
when its decision “is without support under the law.” State Emp. Rels. Bd. v. Adena Loc.
Sch. Dist. Bd. of Educ., 66 Ohio St. 3d 485, 501 (1993) (Wright, J., concurring). Under
that standard, a reviewing court “may not merely substitute its judgment for that of the
administrative agency.” State ex rel. Carnes v. State Empl. Rels. Bd., 2017-Ohio-1137, P41
(10¢ Dist. 2017) (citation omitted).
B. SEIU is entitled to a writ of mandamus.
1. BWCs are a mandatory subject of bargaining.
a. Implementation is a mandatory subject of bargaining.
A public employer must bargain all mandatory subjects of bargaining—those that
pertain to “wages, hours, or terms and other conditions of employment and the
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continuation, modification, or deletion of an existing provision of a collective bargaining
agreement.” O.R.C. § 4117.08(A). Permissive subjects need not be bargained.
When “subjects have both a material influence upon wages, hours, or terms and
other conditions of employment and involve the exercise of inherent managerial
discretion,” SERB employs a three-part balancing test to determine whether a given issue
encompasses a mandatory or permissive subject of bargaining:
1) The extent to which the subject is logically and reasonably related to
wages, hours, terms and conditions of employment;
2) The extent to which the employer’s obligation to negotiate may
significantly abridge its freedom to exercise those managerial prerogatives
set forth in and anticipated by R.C. 4117.08(C), including an examination of
the type of employer involved and whether inherent discretion on the
subject matter at issue is necessary to achieve the employer’s essential
mission and its obligations to the general public; and
3) The extent to which the mediatory influence of collective bargaining and,
when necessary, any impasse resolution mechanisms available to the
parties are the appropriate means of resolving conflicts over the subject
matter.
Inre SERB v Youngstown City School Dist. Bd. of Ed., SERB 95-010 (6-30-
95).
SERB very recently applied the Youngstown test and found the installation of
cameras in a firehouse was a mandatory subject of bargaining. See generally State Emp.
Rels. Bd. v. City of Sharonville, 2021 OH SERB LEXIS 3 (2021). There, the Sharonville
fire chief installed cameras in public and non-public areas of the firehouse. Id. at 3. The
cameras included audio and video and could detect audio of members’ bunk rooms. Id. at
9-10. The union demanded to bargain, and the employer refused. A ULP followed.
SERB first determined that Youngstown applied since the installation of cameras
involved both management discretion and an impact on terms and conditions of
employment. Jd. at 11-12. Under the first Youngstown prong, SERB found that “the use
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of such cameras in the workplace directly affects employees' terms and conditions of
employment. Not only could the information collected be used in the discipline of
employees, but it could reveal concerted protected activities protected under Chapter
4117.” Id. at 16. SERB stressed audio recording heightened the impact since protected
activities might be captured. Id. Under the second prong, SERB found that “the evidence
does not show that the installation of the video/audio surveillance cameras is necessary
to achieve the City Fire Department’s essential mission and its obligations to the general
public.” Id. at 19. The final Youngstown prong weighed in the union’s favor: SERB noted
that the issue was ripe for negotiation and there was no reason to believe the issue could
not be resolved among the parties. Id. at 20-21.
Given the above, SERB ruled that the employer “violated Section 4117.11(A)(1) and
(5) by refusing to bargain with the Union regarding the installation and effects” of the
cameras installed in the non-public areas of the firehouse, and by “refusing to bargain the
effects over the cameras installed in the public areas.” Id. at 21.
Here, the implementation of BWCs and the policy affect terms and conditions of
employment and arguably implicate management prerogative, implicating the
Youngstown test. And that test reveals that BWCs are mandatory subjects of bargaining.
Under the first prong, implementation of BWCs and the policy implicates wages
and terms and conditions of employment. BWCs and the policy expose members to more
avenues of discipline—the explicit holding by SERB in Sharonville. Id. at 16. The
Employer does not dispute this. CR Part 1, pp. 31, 241-242. Discipline, whether by
suspension, demotion, and/or termination, is intertwined with wages as one necessarily
involves the other. A cutting-edge camera strapped to the member’s body guarantees that
each infraction, however slight, will be captured and ready for use by the Employer.
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Likewise, SERB has expressly found that discipline constitutes a mandatory
subject of bargaining. See, e.g., Bd. of Trs., Union Twp., Clermont County v. FOP, Ohio
Valley Lodge No. 112, 146 Ohio App. 3d 456, 461 (12th Dist. 2001) (citation omitted); In
re Cuyahoga County Sheriff's Department, SERB 99-018 (6-30-99) (“Where an employer
introduces a disciplinary component to a work rule or policy and the potential discipline
affects wages, hours, or terms and other conditions of employment, the work rule or
policy, whether new or revised, is a mandatory subject of bargaining.”); State Emp. Rels.
Bd. v. Williams Cnty. Sheriff's Office, 2012 OH SERB LEXIS 1 (2012) (citations omitted).
BWCs also implicate members’ privacy and statutory privileges. Since the devices
are constantly recording, a member and/or anyone around the member may be recorded
while using the restroom; changing clothes or showering in a locker room; for female
members, while pumping breast milk or changing a menstrual product; while speaking
with a spouse (implicating the spousal/marital privilege), child, or personal physician or
therapist (implicating the doctor/patient privilege); and/or while consulting a lawyer,
whether personal/union or an assistant attorney general/prosecutor in preparation for a
trial (implicating the attorney-client privilege).
Of course, a BWC recording may also be used to support a member’s criminal
prosecution. Criminal prosecutions were and are one of the central driving forces behind
BWCs. Indeed, BWC recordings are responsible, in whole or part, for the conviction of
multiple officers in recent years. Many of those officers will spend decades behind bars.
Equally important is a member’s right to access footage after the event. For
instance, many law enforcement agencies criminally investigate officer-involved
shootings by default, even when it is apparent the officer acted legally. Access to footage
helps an officer process and recollect events.
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The second prong also weighs heavily in the union’s favor. First, here the Union
does not oppose the implementation of BWCs, quite the opposite. This has also been the
experience of law enforcement agencies across central Ohio. For instance, both the City
of Columbus and the Franklin County Sheriffs Department—the largest police
department and sheriff’s office, respectively, in the state—bargained BWCs.8 In almost
every circumstance a BWC recording of an event demonstrates that a member acted
consistent with the law and administrative rules and regulations. In most arrests and
searches, these recordings also support the prosecution of the suspect.
And while the BWCs may enhance the Employer’s mission as it pertains to
monitoring felons and those on parole, the cameras will also capture many of the private
and statutorily protected events cited above.? And while the Employer will doubtless
argue that a member need not, and sometimes, must not, film those events, in practice
most law enforcement officers are extremely reluctant to remove and/or deactivate their
BWC unless off-duty. The reason is obvious: If a member removes or turns off their
camera—even if allowed by the Employer—but is then inadvertently involved in a critical
incident like a shooting, then the member will have no exculpatory footage, raising the
8 Collective Bargaining Agreement Between the City of Columbus and the Fraternal
Order of Police, Capital City Lodge 9, p. 153 (December 9, 2020 — December 8, 2023),
available at https://serb.chio.gov/static/PDF/Contracts/2020/20-MED-09-0927.pdf;
Collective Bargaining Agreement Between the Franklin County Sheriff's Office and the
Fraternal Order of Police, Capital City Lodge #9, Appendix 10 (January 1, 2022 —
December 31, 2024), available at https://serb.ohio.gov/static/PDF/Contracts/2021/21-
MED-08-0923.pdf.
9 Even the Employer would concede that a member enjoys an expectation of privacy
while, for example, using the restroom or engaging in statutorily protected concerted
activity like speaking with a union representative.
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specter of termination and/or criminal prosecution exponentially.1° In any case, however,
since the Union does not oppose BWCs, the Employer’s mission will not at all be impaired
by negotiation with the Union. And negotiation over, for instance, the footage of private
events like using the bathroom or engaging in concerted activity cannot impair the
Employer’s mission. City of Sharonville at 19.
Finally, the third prong shows that “the collective bargaining process is an
appropriate method to resolve the conflict over the instant subject matter.” State Emp.
Rels. Bd. v. Southwest Ohio Reg’ Transit Auth., 2005 OH SERB LEXIS 45, *47 (2005).
The CBA here is proof that the parties can negotiate virtually every aspect of members’
terms and conditions of employment—no different from the Sharonville parties who were
ordered to do so by SERB or the largest law enforcement agencies in Ohio. The CBA also
contains a mid-term bargaining provision for these exact situations. CR Part 2, p. 23.
The Youngstown factors exclusively weigh in the Union’s favor. Accordingly,
implementation of BWCs constitutes a mandatory subject of bargaining.
b. Even if implementation is not a mandatory subject, the
effects of such implementation require negotiation.
Even if an issue is not, standing alone, a mandatory subject of bargaining, “where
the exercise of a management right causes a change in or ‘affects’ working conditions or
terms of a contract, then the decision to exercise that right is a mandatory subject for
bargaining.” Lorain City Sch. Dist. Bd. of Educ. v. State Empl. Rels. Bd., 40 Ohio St. 3d
10 For example, under the Employer’s policy, a member is not required to wear their
BWC into a bathroom. But if a member stops to use a convenience store bathroom,
leaving the BWC in his or her vehicle, and the store is robbed and a member fires their
weapon, then obviously the BWC will not capture the shooting.
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257, 262 (1988). Thus, “management rights which ‘act upon’ or ‘produce a material
influence upon’ working conditions,” are bargainable. Id.
SERB very recently held that the effects of installing dash cameras inside
ambulances constituted a mandatory subject of bargaining. See generally State Emp.
Rels. Bd. v. City of Cleveland, 2022 OH SERB LEXIS 1 (2022). The cameras in that case
were placed in the front of the ambulance and recorded both video and audio of the road
and into the vehicle’s cabin. Those cameras were also set to automatically record
whenever the driver activated lights or sirens, crashed, or reversed. Id. at 5-6. The
cameras’ purpose included increasing efficiency, but the employer also acknowledged that
footage could be used against a member to support discipline. Id. at 8.
The employer rejected the union’s demand to bargain, arguing it was not required
to bargain either the implementation or effects partly because the parties’ agreement
permitted the employer’s actions. Id. at 6-7. A ULP then followed.
SERB first noted the procedure governing mid-term bargaining:
[T]he employer should give reasonable advance notice of both the decision
to be implemented and the projected date of the implementation. Once the
notice is given and mid-term bargaining is requested, the parties must
bargain in good faith to a legal impasse on the wages, hours, or terms and
other conditions of employment affected by the implementation of the
employer’s decision. Id. Only after the parties have reached ultimate
impasse, or after the employer has made good faith attempts to bargain the
matter before time constraints necessitate implementation, can the
employer implement its last best offer.
Id. at 11-12 (citation omitted).
SERB found that Youngstown applied since the cameras implicated management
rights and materially affected terms and conditions of employment. The first prong
supported the union since, just as in Sharonville, the cameras would be used in part for
disciplinary purposes and could record employees’ protected union activities. Id. at 15.
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Prong two supported the employer, however, since the cameras would only record
during certain events, events that directly corresponded to the employer’s mission. Id. at
17-18. SERB contrasted the recording in that case to the recording in Sharonville, where
it was constant and unrelated to the employer’s mission.
The final prong—whether bargaining could resolve the issue—weighed in the
employer’s favor since the union had expressly opposed implementing the cameras. SERB
also found that the employer’s management rights were entwined with its mission and
purpose in deploying the cameras. Id. at 18-19.
SERB concluded that the implementation of the dash cameras constituted a
permissive subject of bargaining, but that “[b]ecause the terms and conditions of
employment are affected, the [u]nion has the right to engage in effects bargaining.” Id. at
19. Accordingly, SERB found that the employer committed a ULP by refusing to bargain
the effects of installing cameras. Finally, the zipper clause—a clause that waives the right
to demand bargaining on any matter not covered by the parties’ agreement—did not allow
the employer to sidestep its bargaining obligations. Id. at 20-22.
As applied here, there is no question that BWCs affect working conditions and
wages, easily satisfying the first Youngstown prong. Unlike the paramedics in City of
Cleveland, here members of the APA do not oppose BWCs. Moreover, given the success
with other large law enforcement agencies, as well as the parties’ own prior bargaining
success, there is no reason to believe negotiation cannot mutually benefit each party or
that bargaining would erode the Employer’s management rights. These facts tip prongs
two and three to the Union.
Accordingly, at a minimum the Employer must bargain the effects of BWCs on
wages and terms and conditions of employment.
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2. SERB’s ULP dismissal constituted an abuse of discretion.
a. The parties never bargained BWCs.
As a mandatory subject of bargaining, the State was required “to bargain
collectively” over implementing BWCs as well as the accompanying policy. The contours
of that obligation are no mystery:
‘To bargain collectively’ means...to negotiate in good faith...with respect to
wages, hours, terms, and other conditions of employment...with the
intention of reaching an agreement, or to resolve questions arising under
the agreement. ‘To bargain collectively’ includes executing a written
contract incorporating the terms of any agreement reached...
O.R.C. § 4117.01(G) (emphasis added).
Merely meeting to discuss a matter, without the intention to reach an agreement,
has never satisfied a party’s obligation to bargain. State Emp. Rels. Bd. v. City of
Cleveland, 2004 OH SERB LEXIS 28, *8-11 (2004).
In City of Cleveland, the employer met and conferred with the union during
purported negotiations for a collective bargaining agreement. But the employer insisted
on matching the terms of that agreement with another agreement it had recently struck
with another union and “refused to engage with the [uJnion in any give-and-take
whatsoever.” Id. at 10. SERB concluded that though “the City was willing to ‘meet and
confer’ with the Union,” its actions constituted bad faith bargaining in violation of O.R.C.
§§ 4117.41(A}G) and (A)(5). Id.
An employer also bargains in bad faith when it unilaterally implements a
mandatory subject of bargaining before negotiating it with the union. See State Emp. Rels.
Bd. Vv. Mayfield City Sch. District Board of Educ.,
1989 OH SERB LEXIS 33, *11 (1989). There, the employer unilaterally implemented a
supplemental teaching contract--a mandatory subject of bargaining. Though the parties
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engaged in “discussions” about the terms of that agreement, SERB found that the
employer failed to bargain in violation of O.R.C. § 4117.11(A)(1) and (A)(5). Id. at 6, 12.
Here, the Employer never bargained the implementation of BWCs or the BWC
policy. First, the Employer presented the Union with the draft BWC policy before any
discussions had occurred. CR Part 1, pp. 75. And in fact, that draft policy formally went
into effect before the parties ever met, and notwithstanding the Union’s formal demand
to bargain the policy. CR Part 1, pp. 16, 61. At no time has the Employer wavered from its
refusal to bargain.
The meetings and discussions in the absence of either an intent to reach an
agreement, and/or any written proposals or give and take, and/or a final written
agreement cannot constitute bargaining under O.R.C. § 4117.01(G).
b. Because the Employer never bargained, SERB abused
its discretion by finding otherwise.
The three factors required for a writ of mandamus are easily established. The first
two factors—the legal right and legal duty elements—are present:
RC. 4117.12(B) mandates that SERB shall issue a complaint
and shall conduct a hearing concerning an unfair labor practice charge if,
following an investigation of the charge, it has probable cause to believe that
an unfair labor practice has occurred. Thus, SERB has a clear legal duty to
pursue an unfair labor practice case if it has probable cause to believe that
an unfair labor practice has been committed. Additionally, the party that
files the unfair labor practice charge with SERB has a clear legal right to
have that charge proceed beyond the probable-cause stage of the
proceeding if, in fact, there is probable cause to believe that an unfair labor
practice has occurred.
State ex rel. SEIU v. State Empl. Rels. Bd., 81 Ohio St. 3d 173, 177-178
(1998) (emphasis in original).
Finally, the third factor is present as well: “[A]n order by SERB dismissing an
unfair labor practice charge for lack of probable cause is not subject to judicial review by
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way of direct appeal.” Id. at 177 (emphasis removed). Accordingly, because “there is no
right of direct appeal from SERB’s final orders dismissing unfair labor practice charges
on the basis of no probable cause,” the Union here has no adequate legal remedy. Id.
The only remaining issue is whether SERB abused its discretion in dismissing the
Union’s ULP. In other words, was it “unreasonable, arbitrary or unconscionable” for
SERB to determine there was no probable cause? State ex rel. Alben., 76 Ohio St. 3d at
135. It was. First, BWCs are mandatory subjects of bargaining, even if limited to only the
effects. Next, the parties did not bargain any aspect of BWCs. That SERB found the parties
bargained BWCs when the Employer has always maintained to the contrary is
unreasonable and arbitrary.
As the Union has met the three elements for a mandamus and established that
SERB abused its discretion, this Court must issue a writ of mandamus.
Iv. Conclusion
For all these reasons, the Union requests this Court issue a writ of mandamus.
Respectfully submitted,
s/Lathan 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:
Counsel for Relator SEIU District 1199
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569
0G269 - 19
Certificate of Service
I certify that a copy of this Amended Brief of Relator SEIU District 1199 was filed
electronically with the Court this 16th day of February 2023. Copies of the foregoing will
be served on the following via the Court’s electronic filing system and electronic mail:
Dave Yost (0056290)
Ohio Attorney General
Lori J. Friedman (0018480)
Principal Assistant Attorney General
Executive Agencies Section
Labor Relations Unit
615 W. Superior Avenue, 11h Floor
Cleveland, Ohio 44113-1899
Telephone: (216) 787-4196
Fax: (866) 478-7363
HOAGO
Counsel for Respondent
State Employment Relations Board
Scott H. DeHart (0095463)
Jonathan J. Downes (0009905)
Zashin and Rich Co., L.P.A.
17S. High Street, Suite 900
Columbus, OH 43215
614-224-4411 (tel)
614-224-4433 (fax)
Counsel for Respondent State of Ohio,
Department of Rehabilitation and Corrections
By:_/s/ Lathan Lipperman
Lathan Lipperman (0095523)
16
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I77 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO State ex. rel. Service Employees ) International Union, District 1199 ) Case No. 22CV007569 Relator, Judge Jeffrey M. Brown -V- State Employment Relations Board, et al., Respondents. Amended Brief of Relator SEIU District 1199 Lathan J. Lipperman (0095523) Dave Yost (0056290) Nicole Rager Wannemacher (0078095) Ohio Attorney General Harshman & Wannemacher 4683 Winterset Drive Lori J. Friedman (0018480) Columbus, Ohio 43220 Principal Assistant Attorney General Telephone: 614-573-6944 Executive Agencies Section Fax: 614-573-6948 Labor Relations Unit Emails: 615 W. Superior Avenue, 11th Floor Cleveland, Ohio 44113-1899 Telephone: (216) 787-4196 Counsel for Relator SEIU District 1199 Fax: (866) 478-7: E: Lory 363 YL GO. gay Counsel for Respondent State Employment Relations Board Scott H. DeHart (0095463) Jonathan J. Downes (0009905) Zashin and Rich Co., L.P.A. 17 S. High Street, Suite 900 Columbus, OH 43215 614-224-4411 (tel) 614-224-443 3 (fax) & ay a | lid@erla OM. Counsel for Respondent State of Ohio, Department of Rehabilitation and Corrections Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I78 I Introduction This case presents the question of whether SERB abused its discretion by failing to find probable cause that the Ohio Department of Rehabilitation and Correction (“ODRC” or “Employer”) violated O.R.C. §§ 4117.11(A)(1) and (A)(5) when it unilaterally implemented body worn cameras and an accompanying policy—mandatory subjects of bargaining—without negotiating with the Service Employees International Union, District 1199 (“Union”). Any mandatory subject of bargaining must be negotiated with the union. Implementation and the effects of implementing body worn cameras (“BWCs”) materially impact terms and conditions of employment and are therefore mandatory subjects of bargaining. SERB has held that installing surveillance cameras and the effects of installing dash cameras are mandatory subjects of bargaining. But here ODRC unilaterally implemented BWCs and an accompanying policy then refused to bargain the policy despite the Union’s formal demand to do so. Accordingly, the Union filed a ULP. Contrary to ODRC’s own assertions that it refused to bargain the policy, the State Employment Relations Board (“SERB”) found that ODRC had negotiated BWCs and met its statutory duties. By failing to find probable cause that the Employer violated Chapter 4117 by refusing to negotiate a mandatory subject of bargaining, SERB abused its discretion. The Union is therefore entitled to a writ of mandamus compelling a hearing. Il. Statement of Facts A. The parties and their collective bargaining history ODRC is a public employer as defined by O.R.C. § 4117.01(B). ODRC is responsible for overseeing Ohio’s prison and parole systems—the latter of which falls under the Adult 1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I7 Parole Authority (“APA”), a division of ODRC. Parole officers working for the APA are bargaining unit members covered by the collective bargaining agreement (“CBA”) between ODRC and SEIU, parole officers’ exclusive representative as defined by O.R.C. § 4117.01(D). The dispute here arose under the current CBA, effective from September 8, 2021 — April 30, 2024. Certified Record (“CR”) Part 2, p. 174. The CBA has a midterm bargaining provision should any changes to the CBA be necessary. CR Part 2, p. 23. Nothing in the CBA expressly allows the Employer to implement BWCs. While the CBA allows the Employer to “make reasonable use of technology to assure that employees are appropriately engaged in work activities while on work time,” and provides that employees do not enjoy an expectation of privacy, nothing within the CBA provides for the use of BWCs. CR Part 2, p. 150. B. Overview of body-worn cameras BWCs are powerful data collection devices. This is especially true for the Axon 3 body camera, the BWC chosen by ODRC.1 The Axon 3 stores up to 18 hours of footage.? Axon BWCs have a “pre-buffer” (also known as a “lookback”) feature that can record anywhere from 30 to 120 seconds before the record button is pressed. ODRC has programmed the BWC lookback to include audio. CR Part 1, p. 65. The Axon 3 BWC also records whenever the BWC is powered on, even if the wearer never presses the record button. That technology is known as either “record after the fact” or “video recall.”4 Axon 1 Ohio equipping prison, parole staff with body cameras, 10TV (Janu: meh 13, 2022), : oe S ALC alk. 2 Id. 3 Axon Body 3, Axon, <3 (last visited January 10, 2023). 4Id. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - 180 BWCs also have livestreaming technology, which allows an employer to view a live feed of the wearer’s camera, even without the wearer’s consent. The BWCs come with built-in GPS tracking devices, allowing real time tracking. Finally, these BWCs can be programmed to automatically begin recording—no different than if the record button is pressed—when a certain event occurs, such as the unholstering of a weapon. 7 This is known as an “automatic activation” or trigger. CR Part 1, p. 61. C. The unilateral implementation of BWCs and BWC policy On December 6, 2021, the Employer announced its plan to implement BWCs. CR Part 1, p. 75. It also sent SEIU a draft of its BWC policy—which it had created without any negotiation with the Union. The Employer scheduled a meeting with the Union for December 8, 2021, to “discuss BWCs at APA.” CR Part 1, p. 26. The Union had to reschedule that meeting after two APA officers were in a shootout with a violent felon. Id. The Employer unilaterally implemented its BWC policy on December 23, 2021. CR Part 1, p. 61. Critically, the policy allows the Employer to use BWC recordings to discipline members. CR Part 1, p. 68. On January 4, 2022, the Union filed a formal demand to bargain the “use and implementation” of BWCs. CR Part 1, p. 16. The December 8t» meeting was rescheduled for January 11, 2022—weeks after the BWC policy went into effect. CR Part 1, p. 61. According to the Employer, that “meeting was informational” and gave the Union the chance “to ask questions and provide feedback.” Id. (emphasis added). There, the Employer refused to bargain over BWCs and claimed it was not required to do 5 Id. ld. 7 Axon Signal Vehicle, Axon, 3 Love (last visited January 10, 2023). Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I81 so. It reiterated that refusal several days later through the Office of Collective Bargaining, while noting that it would consider any Union “input” or “feedback CR Part 1, p. 6. The parties met again in the beginning of February. There, the Employer demonstrated the BWCs and allowed the Union to ask technological questions about the BWCs, but again the Employer refused to bargain the implementation or use of the BWCs. CR Part 1, p. 26. To date, the Employer has never bargained any aspect of the BWCs. D. SEIU’s ULP filing over the Employer’s failure to bargain BWCs The Union filed an unfair labor practice (ULP) charge on January 18, 2022 alleging violations of O.R.C. §§ 4117.11(A)(1) and (A)(5). CR Part 1, pp. 3-4. The Union argued that under Chapter 4117 of the Ohio Revised Code and SERB’s own precedent, the Employer flouted its obligation to bargain. CR Part 1, pp. 91-99. In contrast, the Employer claimed it was not required to bargain, but that it had been willing to meet with the Union for “informational” purposes and to answer questions. CR Part 1, p. 26. The Employer was careful, however, to never assert that such “informational” meetings or question-and- answer sessions constituted bargaining. Notwithstanding the Employer’s admission that bargaining never occurred, SERB found the Employer “bargained the [BWC] policy with the Union on multiple occasions” and dismissed the ULP. CR Part 1, p. 112. SEIU timely filed a Motion for Reconsideration (CR Part 1, p. 181), which SERB dismissed on July 21, 2022. CR Part 1, pp. 310-313. Til. Law and Argument A. Legal Standard A ULP may be filed by either an employer or the union and alleges that the non- filing party violated Ohio’s collective bargaining statute. Upon the timely filing of a ULP, Ohio law requires SERB to “investigate the charge.” O.R.C. § 4117.12(B). If after such 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I8 investigation there is probable cause that a party has committed a violation, then SERB must “issue a complaint” and “conduct a hearing concerning the charge.” Id. A probable cause determination by SERB is not reviewable by direct appeal. Ohio Ass'n v. Dayton City Sch. Dist. Bd. of Educ., 59 Ohio St. 3d 159, 160 (1991). Instead, the appropriate remedy is a mandamus action. State ex rel. SEIU v. State Empl. Rels. Bd., 81 Ohio St. 3d 173, 179 (1998). To be entitled to a writ of mandamus, a relator must show “() that he or she has a clear legal right to the relief prayed for, (2) that respondents are under a corresponding clear legal duty to perform the requested acts, and (3) that relator has no plain and adequate legal remedy.” State ex rel. Ohio Ass’n of Pub. Sch. Employees / AFSCME v. State Emp. Rels. Bd., 64 Ohio St. 3d 149, 151 (1992) (citation omitted). A trial court reviews SERB’s probable cause determination under an abuse of discretion standard. State ex rel. Alben v. State Empl. Rels. Bd., 76 Ohio St. 3d 133, 135 (1996). An “abuse of discretion implies an attitude that is unreasonable, arbitrary, or unconscionable.” Id. (citation omitted). Put another way, SERB abuses its discretion when its decision “is without support under the law.” State Emp. Rels. Bd. v. Adena Loc. Sch. Dist. Bd. of Educ., 66 Ohio St. 3d 485, 501 (1993) (Wright, J., concurring). Under that standard, a reviewing court “may not merely substitute its judgment for that of the administrative agency.” State ex rel. Carnes v. State Empl. Rels. Bd., 2017-Ohio-1137, P41 (10¢ Dist. 2017) (citation omitted). B. SEIU is entitled to a writ of mandamus. 1. BWCs are a mandatory subject of bargaining. a. Implementation is a mandatory subject of bargaining. A public employer must bargain all mandatory subjects of bargaining—those that pertain to “wages, hours, or terms and other conditions of employment and the 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I8 continuation, modification, or deletion of an existing provision of a collective bargaining agreement.” O.R.C. § 4117.08(A). Permissive subjects need not be bargained. When “subjects have both a material influence upon wages, hours, or terms and other conditions of employment and involve the exercise of inherent managerial discretion,” SERB employs a three-part balancing test to determine whether a given issue encompasses a mandatory or permissive subject of bargaining: 1) The extent to which the subject is logically and reasonably related to wages, hours, terms and conditions of employment; 2) The extent to which the employer’s obligation to negotiate may significantly abridge its freedom to exercise those managerial prerogatives set forth in and anticipated by R.C. 4117.08(C), including an examination of the type of employer involved and whether inherent discretion on the subject matter at issue is necessary to achieve the employer’s essential mission and its obligations to the general public; and 3) The extent to which the mediatory influence of collective bargaining and, when necessary, any impasse resolution mechanisms available to the parties are the appropriate means of resolving conflicts over the subject matter. Inre SERB v Youngstown City School Dist. Bd. of Ed., SERB 95-010 (6-30- 95). SERB very recently applied the Youngstown test and found the installation of cameras in a firehouse was a mandatory subject of bargaining. See generally State Emp. Rels. Bd. v. City of Sharonville, 2021 OH SERB LEXIS 3 (2021). There, the Sharonville fire chief installed cameras in public and non-public areas of the firehouse. Id. at 3. The cameras included audio and video and could detect audio of members’ bunk rooms. Id. at 9-10. The union demanded to bargain, and the employer refused. A ULP followed. SERB first determined that Youngstown applied since the installation of cameras involved both management discretion and an impact on terms and conditions of employment. Jd. at 11-12. Under the first Youngstown prong, SERB found that “the use 6 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I84 of such cameras in the workplace directly affects employees' terms and conditions of employment. Not only could the information collected be used in the discipline of employees, but it could reveal concerted protected activities protected under Chapter 4117.” Id. at 16. SERB stressed audio recording heightened the impact since protected activities might be captured. Id. Under the second prong, SERB found that “the evidence does not show that the installation of the video/audio surveillance cameras is necessary to achieve the City Fire Department’s essential mission and its obligations to the general public.” Id. at 19. The final Youngstown prong weighed in the union’s favor: SERB noted that the issue was ripe for negotiation and there was no reason to believe the issue could not be resolved among the parties. Id. at 20-21. Given the above, SERB ruled that the employer “violated Section 4117.11(A)(1) and (5) by refusing to bargain with the Union regarding the installation and effects” of the cameras installed in the non-public areas of the firehouse, and by “refusing to bargain the effects over the cameras installed in the public areas.” Id. at 21. Here, the implementation of BWCs and the policy affect terms and conditions of employment and arguably implicate management prerogative, implicating the Youngstown test. And that test reveals that BWCs are mandatory subjects of bargaining. Under the first prong, implementation of BWCs and the policy implicates wages and terms and conditions of employment. BWCs and the policy expose members to more avenues of discipline—the explicit holding by SERB in Sharonville. Id. at 16. The Employer does not dispute this. CR Part 1, pp. 31, 241-242. Discipline, whether by suspension, demotion, and/or termination, is intertwined with wages as one necessarily involves the other. A cutting-edge camera strapped to the member’s body guarantees that each infraction, however slight, will be captured and ready for use by the Employer. 7 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I8 Likewise, SERB has expressly found that discipline constitutes a mandatory subject of bargaining. See, e.g., Bd. of Trs., Union Twp., Clermont County v. FOP, Ohio Valley Lodge No. 112, 146 Ohio App. 3d 456, 461 (12th Dist. 2001) (citation omitted); In re Cuyahoga County Sheriff's Department, SERB 99-018 (6-30-99) (“Where an employer introduces a disciplinary component to a work rule or policy and the potential discipline affects wages, hours, or terms and other conditions of employment, the work rule or policy, whether new or revised, is a mandatory subject of bargaining.”); State Emp. Rels. Bd. v. Williams Cnty. Sheriff's Office, 2012 OH SERB LEXIS 1 (2012) (citations omitted). BWCs also implicate members’ privacy and statutory privileges. Since the devices are constantly recording, a member and/or anyone around the member may be recorded while using the restroom; changing clothes or showering in a locker room; for female members, while pumping breast milk or changing a menstrual product; while speaking with a spouse (implicating the spousal/marital privilege), child, or personal physician or therapist (implicating the doctor/patient privilege); and/or while consulting a lawyer, whether personal/union or an assistant attorney general/prosecutor in preparation for a trial (implicating the attorney-client privilege). Of course, a BWC recording may also be used to support a member’s criminal prosecution. Criminal prosecutions were and are one of the central driving forces behind BWCs. Indeed, BWC recordings are responsible, in whole or part, for the conviction of multiple officers in recent years. Many of those officers will spend decades behind bars. Equally important is a member’s right to access footage after the event. For instance, many law enforcement agencies criminally investigate officer-involved shootings by default, even when it is apparent the officer acted legally. Access to footage helps an officer process and recollect events. 8 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I8 The second prong also weighs heavily in the union’s favor. First, here the Union does not oppose the implementation of BWCs, quite the opposite. This has also been the experience of law enforcement agencies across central Ohio. For instance, both the City of Columbus and the Franklin County Sheriffs Department—the largest police department and sheriff’s office, respectively, in the state—bargained BWCs.8 In almost every circumstance a BWC recording of an event demonstrates that a member acted consistent with the law and administrative rules and regulations. In most arrests and searches, these recordings also support the prosecution of the suspect. And while the BWCs may enhance the Employer’s mission as it pertains to monitoring felons and those on parole, the cameras will also capture many of the private and statutorily protected events cited above.? And while the Employer will doubtless argue that a member need not, and sometimes, must not, film those events, in practice most law enforcement officers are extremely reluctant to remove and/or deactivate their BWC unless off-duty. The reason is obvious: If a member removes or turns off their camera—even if allowed by the Employer—but is then inadvertently involved in a critical incident like a shooting, then the member will have no exculpatory footage, raising the 8 Collective Bargaining Agreement Between the City of Columbus and the Fraternal Order of Police, Capital City Lodge 9, p. 153 (December 9, 2020 — December 8, 2023), available at https://serb.chio.gov/static/PDF/Contracts/2020/20-MED-09-0927.pdf; Collective Bargaining Agreement Between the Franklin County Sheriff's Office and the Fraternal Order of Police, Capital City Lodge #9, Appendix 10 (January 1, 2022 — December 31, 2024), available at https://serb.ohio.gov/static/PDF/Contracts/2021/21- MED-08-0923.pdf. 9 Even the Employer would concede that a member enjoys an expectation of privacy while, for example, using the restroom or engaging in statutorily protected concerted activity like speaking with a union representative. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I87 specter of termination and/or criminal prosecution exponentially.1° In any case, however, since the Union does not oppose BWCs, the Employer’s mission will not at all be impaired by negotiation with the Union. And negotiation over, for instance, the footage of private events like using the bathroom or engaging in concerted activity cannot impair the Employer’s mission. City of Sharonville at 19. Finally, the third prong shows that “the collective bargaining process is an appropriate method to resolve the conflict over the instant subject matter.” State Emp. Rels. Bd. v. Southwest Ohio Reg’ Transit Auth., 2005 OH SERB LEXIS 45, *47 (2005). The CBA here is proof that the parties can negotiate virtually every aspect of members’ terms and conditions of employment—no different from the Sharonville parties who were ordered to do so by SERB or the largest law enforcement agencies in Ohio. The CBA also contains a mid-term bargaining provision for these exact situations. CR Part 2, p. 23. The Youngstown factors exclusively weigh in the Union’s favor. Accordingly, implementation of BWCs constitutes a mandatory subject of bargaining. b. Even if implementation is not a mandatory subject, the effects of such implementation require negotiation. Even if an issue is not, standing alone, a mandatory subject of bargaining, “where the exercise of a management right causes a change in or ‘affects’ working conditions or terms of a contract, then the decision to exercise that right is a mandatory subject for bargaining.” Lorain City Sch. Dist. Bd. of Educ. v. State Empl. Rels. Bd., 40 Ohio St. 3d 10 For example, under the Employer’s policy, a member is not required to wear their BWC into a bathroom. But if a member stops to use a convenience store bathroom, leaving the BWC in his or her vehicle, and the store is robbed and a member fires their weapon, then obviously the BWC will not capture the shooting. 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - 188 257, 262 (1988). Thus, “management rights which ‘act upon’ or ‘produce a material influence upon’ working conditions,” are bargainable. Id. SERB very recently held that the effects of installing dash cameras inside ambulances constituted a mandatory subject of bargaining. See generally State Emp. Rels. Bd. v. City of Cleveland, 2022 OH SERB LEXIS 1 (2022). The cameras in that case were placed in the front of the ambulance and recorded both video and audio of the road and into the vehicle’s cabin. Those cameras were also set to automatically record whenever the driver activated lights or sirens, crashed, or reversed. Id. at 5-6. The cameras’ purpose included increasing efficiency, but the employer also acknowledged that footage could be used against a member to support discipline. Id. at 8. The employer rejected the union’s demand to bargain, arguing it was not required to bargain either the implementation or effects partly because the parties’ agreement permitted the employer’s actions. Id. at 6-7. A ULP then followed. SERB first noted the procedure governing mid-term bargaining: [T]he employer should give reasonable advance notice of both the decision to be implemented and the projected date of the implementation. Once the notice is given and mid-term bargaining is requested, the parties must bargain in good faith to a legal impasse on the wages, hours, or terms and other conditions of employment affected by the implementation of the employer’s decision. Id. Only after the parties have reached ultimate impasse, or after the employer has made good faith attempts to bargain the matter before time constraints necessitate implementation, can the employer implement its last best offer. Id. at 11-12 (citation omitted). SERB found that Youngstown applied since the cameras implicated management rights and materially affected terms and conditions of employment. The first prong supported the union since, just as in Sharonville, the cameras would be used in part for disciplinary purposes and could record employees’ protected union activities. Id. at 15. 1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I8 Prong two supported the employer, however, since the cameras would only record during certain events, events that directly corresponded to the employer’s mission. Id. at 17-18. SERB contrasted the recording in that case to the recording in Sharonville, where it was constant and unrelated to the employer’s mission. The final prong—whether bargaining could resolve the issue—weighed in the employer’s favor since the union had expressly opposed implementing the cameras. SERB also found that the employer’s management rights were entwined with its mission and purpose in deploying the cameras. Id. at 18-19. SERB concluded that the implementation of the dash cameras constituted a permissive subject of bargaining, but that “[b]ecause the terms and conditions of employment are affected, the [u]nion has the right to engage in effects bargaining.” Id. at 19. Accordingly, SERB found that the employer committed a ULP by refusing to bargain the effects of installing cameras. Finally, the zipper clause—a clause that waives the right to demand bargaining on any matter not covered by the parties’ agreement—did not allow the employer to sidestep its bargaining obligations. Id. at 20-22. As applied here, there is no question that BWCs affect working conditions and wages, easily satisfying the first Youngstown prong. Unlike the paramedics in City of Cleveland, here members of the APA do not oppose BWCs. Moreover, given the success with other large law enforcement agencies, as well as the parties’ own prior bargaining success, there is no reason to believe negotiation cannot mutually benefit each party or that bargaining would erode the Employer’s management rights. These facts tip prongs two and three to the Union. Accordingly, at a minimum the Employer must bargain the effects of BWCs on wages and terms and conditions of employment. 12 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - 190 2. SERB’s ULP dismissal constituted an abuse of discretion. a. The parties never bargained BWCs. As a mandatory subject of bargaining, the State was required “to bargain collectively” over implementing BWCs as well as the accompanying policy. The contours of that obligation are no mystery: ‘To bargain collectively’ means...to negotiate in good faith...with respect to wages, hours, terms, and other conditions of employment...with the intention of reaching an agreement, or to resolve questions arising under the agreement. ‘To bargain collectively’ includes executing a written contract incorporating the terms of any agreement reached... O.R.C. § 4117.01(G) (emphasis added). Merely meeting to discuss a matter, without the intention to reach an agreement, has never satisfied a party’s obligation to bargain. State Emp. Rels. Bd. v. City of Cleveland, 2004 OH SERB LEXIS 28, *8-11 (2004). In City of Cleveland, the employer met and conferred with the union during purported negotiations for a collective bargaining agreement. But the employer insisted on matching the terms of that agreement with another agreement it had recently struck with another union and “refused to engage with the [uJnion in any give-and-take whatsoever.” Id. at 10. SERB concluded that though “the City was willing to ‘meet and confer’ with the Union,” its actions constituted bad faith bargaining in violation of O.R.C. §§ 4117.41(A}G) and (A)(5). Id. An employer also bargains in bad faith when it unilaterally implements a mandatory subject of bargaining before negotiating it with the union. See State Emp. Rels. Bd. Vv. Mayfield City Sch. District Board of Educ., 1989 OH SERB LEXIS 33, *11 (1989). There, the employer unilaterally implemented a supplemental teaching contract--a mandatory subject of bargaining. Though the parties 13 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - I91 engaged in “discussions” about the terms of that agreement, SERB found that the employer failed to bargain in violation of O.R.C. § 4117.11(A)(1) and (A)(5). Id. at 6, 12. Here, the Employer never bargained the implementation of BWCs or the BWC policy. First, the Employer presented the Union with the draft BWC policy before any discussions had occurred. CR Part 1, pp. 75. And in fact, that draft policy formally went into effect before the parties ever met, and notwithstanding the Union’s formal demand to bargain the policy. CR Part 1, pp. 16, 61. At no time has the Employer wavered from its refusal to bargain. The meetings and discussions in the absence of either an intent to reach an agreement, and/or any written proposals or give and take, and/or a final written agreement cannot constitute bargaining under O.R.C. § 4117.01(G). b. Because the Employer never bargained, SERB abused its discretion by finding otherwise. The three factors required for a writ of mandamus are easily established. The first two factors—the legal right and legal duty elements—are present: RC. 4117.12(B) mandates that SERB shall issue a complaint and shall conduct a hearing concerning an unfair labor practice charge if, following an investigation of the charge, it has probable cause to believe that an unfair labor practice has occurred. Thus, SERB has a clear legal duty to pursue an unfair labor practice case if it has probable cause to believe that an unfair labor practice has been committed. Additionally, the party that files the unfair labor practice charge with SERB has a clear legal right to have that charge proceed beyond the probable-cause stage of the proceeding if, in fact, there is probable cause to believe that an unfair labor practice has occurred. State ex rel. SEIU v. State Empl. Rels. Bd., 81 Ohio St. 3d 173, 177-178 (1998) (emphasis in original). Finally, the third factor is present as well: “[A]n order by SERB dismissing an unfair labor practice charge for lack of probable cause is not subject to judicial review by 14 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - 19 way of direct appeal.” Id. at 177 (emphasis removed). Accordingly, because “there is no right of direct appeal from SERB’s final orders dismissing unfair labor practice charges on the basis of no probable cause,” the Union here has no adequate legal remedy. Id. The only remaining issue is whether SERB abused its discretion in dismissing the Union’s ULP. In other words, was it “unreasonable, arbitrary or unconscionable” for SERB to determine there was no probable cause? State ex rel. Alben., 76 Ohio St. 3d at 135. It was. First, BWCs are mandatory subjects of bargaining, even if limited to only the effects. Next, the parties did not bargain any aspect of BWCs. That SERB found the parties bargained BWCs when the Employer has always maintained to the contrary is unreasonable and arbitrary. As the Union has met the three elements for a mandamus and established that SERB abused its discretion, this Court must issue a writ of mandamus. Iv. Conclusion For all these reasons, the Union requests this Court issue a writ of mandamus. Respectfully submitted, s/Lathan 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: Counsel for Relator SEIU District 1199 15 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Feb 16 6:27 PM-22CV007569 0G269 - 19 Certificate of Service I certify that a copy of this Amended Brief of Relator SEIU District 1199 was filed electronically with the Court this 16th day of February 2023. Copies of the foregoing will be served on the following via the Court’s electronic filing system and electronic mail: Dave Yost (0056290) Ohio Attorney General Lori J. Friedman (0018480) Principal Assistant Attorney General Executive Agencies Section Labor Relations Unit 615 W. Superior Avenue, 11h Floor Cleveland, Ohio 44113-1899 Telephone: (216) 787-4196 Fax: (866) 478-7363 HOAGO Counsel for Respondent State Employment Relations Board Scott H. DeHart (0095463) Jonathan J. Downes (0009905) Zashin and Rich Co., L.P.A. 17S. High Street, Suite 900 Columbus, OH 43215 614-224-4411 (tel) 614-224-4433 (fax) Counsel for Respondent State of Ohio, Department of Rehabilitation and Corrections By:_/s/ Lathan Lipperman Lathan Lipperman (0095523) 16