Ohio Supreme Court Denies Relief In Two Employment Cases

This week, the Ohio Supreme Court issued two per curiam decisions.  In the first, the Court concluded that there was “some evidence” showing that OPERS did not abuse its discretion when it denied pension benefits to an independent contractor psychiatrist hired by the Lucasville prison despite the amount of control that the prison exercised. State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd., Slip Opinion No. 2019-Ohio-1568.  In the second decision, the Court ruled that the Cuyahoga County Common Pleas Court lacked jurisdiction to restrain the City of Cleveland from changing the starting time of its union firefighters from 8:30 a.m. to 7:00 a.m. because such matters are within the exclusive jurisdiction of SERB.  State ex rel. Cleveland v. Russo, Slip Opinion No. 2019-Ohio-1595.


According to the Court’s opinion, the pro se psychiatrist signed a Personal Services Contract with the prison which identified him as an independent contractor, required him to work 16 hours/week for up to 8 hours/day and required him to submit an invoice in order to be paid.  He was issued 1099 tax forms and did not receive any fringe benefits, or unemployment or workers compensation coverage.   The agreement was renewed several times.  After he terminated the contract, he sought service credits from the Public Employee Retirement System.  OPERS denied his application and appeal, as did a Franklin County magistrate, but the Court of Appeals reversed based on the amount of control the prison exercised over him.   The prison provided him with an office while he was there, provided him with some training, issued him a badge, provided him with malpractice coverage, set his work schedule, and required him to clock in and out.  The court acknowledged that it was unlikely that any psychiatrist could be an independent contractor under such conditions.  The Court reversed because the appeal was subject to an abuse of discretion standard that must affirm OPERS if there is any evidence that could support its decision.  The OPERS regulations distinguishing between employees and contractors favored independent contractor status because he was not carried on payroll, submitted invoices, received no fringe benefits and was identified as an independent contractor, etc. This was “some evidence” supporting the OPERS decision to deny service credit.


According to the Court’s opinion, the firefighter union had filed an unfair labor practice charge over the City’s intention to change the shift starting time.  It then filed for a temporary restraining order, which was granted on the grounds that the change could affect child custody arrangements.  The City sought a mandamus, which was granted because SERB possesses exclusive jurisdiction over disputes covered by the collective bargaining agreement.  No independent statutory or common law right supported the union’s requested relief.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Requires SERB ULPs to be Filed Within 90 Days of Earliest Notice

At the end of last month, the Ohio Supreme Court affirmed SERB’s dismissal of unfair labor practice charges filed against the City of Columbus on the grounds that they were untimely.   State ex rel. Murray v. State Emp. Relations Bd., Slip Opinion No. 2018-Ohio-5131.  A unanimous court concluded that the plaintiff should have realized by the time of filing his federal lawsuit that he had grounds to file an unfair labor practice charge over the more than two-year delay in scheduling an arbitration hearing on his termination and rejected his argument that he had filed his lawsuit only to preserve the federal two-year limitations period and had been lead to believe that his union and the city were still discussing scheduling his arbitration.  Accordingly, SERB did not abuse its discretion in dismissing as untimely the ULPs filed more than 120 days after the lawsuit had been initiated.  A divided Court affirmed the dismissal of two later ULPs filed within 90 days of when a settlement agreement between the city and union was signed and provided to the plaintiff claiming to have resolved his grievance 14 months earlier.  The city and union had told the federal court in June 2011 that the grievance had been resolved in July 2010, but did not sign or provide the agreement until September 2011.  The majority found that SERB did not abuse its discretion in finding that the plaintiff should have filed within 90 days of June 23 when he learned about the secret resolution.

According to the Court’s opinion, the plaintiff had been fired from the police department on September 4, 2008 and filed a timely grievance.  The union sought arbitration on September 10 and then the matter sat, as they often do, for almost two years. A year and 360 days after his termination (presumably to beat the limitations period), the plaintiff filed suit on September 4 alleging that he had been denied due process by his termination and delayed arbitration.  An arbitration hearing was then scheduled, according to the plaintiff, and cancelled.   More than 120 days after he filed his federal lawsuit, on January 18, 2011, the plaintiff filed two unfair labor practice charges with SERB against the city and the union, alleging that they collaborated to deny him an arbitration hearing.  However, in June 2011, the city and the union told the federal court that they had settled the plaintiff’s grievance almost a year earlier in July 2010 and sent him a copy of the settlement in September 2011 that was not even signed until September 29, 2011.  The plaintiff filed two more ULPs against the city and the union accusing them of falsifying evidence to deprive him of an arbitration hearing.  SERB dismissed all of the plaintiff’s ULPs on the grounds that they were filed more after the 90 day limitations period had run.

SERB may not hold hearings on ULPs that are filed more than 90 days after the challenge practice occurred. “The ninety-day time period does not commence until the charging party knew or should have known of the conduct which constituted the improper conduct and actual damage ensued.”  Timeliness determinations are not reviewable on direct appeal, but a mandamus will issue if SERB abused its discretion.  In this case, while the plaintiff contended that negotiations over the scheduling of his arbitration hearing continued until December 2010, the Court concluded that he should have realized that he had grounds to file an ULP by the time he filed his federal lawsuit – challenging his termination and the delay in scheduling the arbitration – on September 3.  Because he did not file his initial ULPs until more than 90 days after he initiated his federal lawsuit, his ULPs were untimely.   His ULPs alleging falsification of evidence filed in December 2011 were found to be untimely because they were filed more than 90 days after his attorney had been notified in federal court in June 2011 that the union and city had resolved his grievance among themselves in July 2010, even though they did not ultimately provide him with a copy of the settlement until September 29, 2011.

Dissenting, Justice O’Connor disagreed that the limitations period could have run on the falsification ULPs when the falsified evidence was not even created or provided to the plaintiff until less than 90 days before he filed those ULPs.   He likely would have been unable to prove his case until he received a copy of the supposed agreement.  She believed that SERB abused its discretion by speculating when the ULP actually occurred.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Affirms SERB Finding that Cincinnati Assistant Fire Chiefs Are Not Managers.

Yesterday, the Franklin County Court of Appeals affirmed a SERB ruling that Assistant Fire Chiefs were not management level employees and, thus, could join the IAFF bargaining unit. Cincinnati v. State Emp. Relations Bd., 2009-Ohio-5782. While the trial court noted that there was some evidence in the record supporting the City’s argument (that its four Assistant Chiefs were managers), it concluded that it must presume the correctness of the SERB factual findings when they were supported by substantial evidence. The Court of Appeals concluded that it could only reverse the factual conclusions for an abuse of discretion, which it did not find. In particular, the evidence showed that many of the Assistant Chief’s former management and administrative duties were transferred to the new Executive Officer hired in July 2007 and who began to act as the Chief in his absence (rather than the Assistant Chiefs).

To start, the Court noted that “public employees” have the right under Ohio Revised Code 4117.03 to join unions unless they are, among other things, “management level employees” as defined by 4117.01. In turn, § 4117.01(L) defines a management level employee as "an individual who formulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required" on the public employer's behalf "to assist in the preparation for the conduct of collective negotiated agreements, or have a major role in personnel administration."

After the Executive Officer position was created in 2007, the Assistant Chiefs testified that they no longer filled in for the Chief and could not authorize purchases. While they presided over grievance hearings and could recommend disciplinary action, their recommendations had to be first approved (and could be changed) by the Chief, the Law Director and the City Manager. They could not settle grievances on their own authority. While they implement and enforce the bargaining agreement, all interpretation is left to the Human Resources Department. Admittedly, the Assistant Chiefs review District Chiefs (who in turn review Captains, who review Lieutenants, etc.). There was also evidence that they had no control over setting policy, although they could make recommendations.

While Assistant Chiefs had participated on the management team in bargaining negotiations in 2001 and 2003, they thereafter refused to participate on the grounds that they were IAFF members (even though not part of the bargaining unit). Therefore, they did not meet the statutory definition under that clause, either.

The Court rejected the City’s argument that the Assistant Chiefs outrank the Executive Officer at a fire scene because the Department followed “incident command” where the ranking officer was in Charge, whether it was the Chief, the Assistant Chief, the District Commander, Captain or Lieutenant. In contrast with the management level Captains in Twinsburg Fire Fighters, Local 3630 v. SERB, the Cincinnati Assistant Chiefs never or rarely “recommended changes to the Standard Operating Procedures and Guidelines that were adopted, updated the personnel manual, . . . re-wrote the driver's training manual without needing approval of the content, . . . enforced discipline, were in charge of fire safety programs and safety committees, and represented management during contract negotiations.”

Finally, the Court rejected the City’s argument that the Assistant Chief’s testimony should be disregarded when they accepted the benefits of a contract (which then became a City Ordinance) which gave them a 16% raise on account of their non-bargaining unit and fiduciary status. The Court agreed with the trial court that the analysis was governed by Revised Code 4117 instead of a written agreement between the parties.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5782.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.