Cincinnati ‘Zero For Five’ On Assistant Chief Positions

In 2001, Cincinnati voters passed a charter amendment that removed guaranteed Civil Service Commission appeal protections for assistant police chiefs and allowed them to be appointed by the City Manager. In 2004 and 2005, the City and Lodge 69 of the Fraternal Order of Police, which represents the assistant chiefs, negotiated a new collective bargaining agreement. The City proposed removing all references to assistant police chief positions from the contract, including the recognition clause in the contract. No agreement was reached, the matter was resolved through the binding arbitration process (referred to under Ohio law as binding conciliation). The Conciliator sided with the Union.

When the City took the position that it need not comply with the Conciliator’s award, the Union filed an unfair labor practice complaint with Ohio’s State Employment Relations Board (SERB). The SERB determined that the City had committed an unfair labor practice. The City then appealed SERB’s decision to a trial court, which referred the matter to a magistrate. The Magistrate upheld SERB’s decision, and a trial court adopted the Magistrate’s decision.

The City then appealed to the Ohio Court of Appeals. In the words of the Court, “the City, having lost before four successive times before four tribunals, appeals again. We make it zero for five and affirm.”

The heart of the City’s argument was that its proposal to remove assistant police chiefs, contrary to the conclusion of the Conciliator, was a mandatory subject of bargaining. The Court disagreed, finding that “SERB was created to administer and enforce the collective bargaining law. The courts must defer to SERB’s interpretation of the law. A clause that simply recites which police positions are part of the bargaining unit is not a matter that pertains to wages, hours, or terms and conditions of employment. Taking the City’s argument to its extreme would mean that the Union and the City would be required to bargain over each and every clause in the entire collective bargaining agreement, and make the above-quoted language superfluous. We agree with SERB that the recognition clause which defines the composition of the bargaining unit is not a mandatory subject of bargaining.”

The Court also found that because the recognition clause was not a mandatory subject of bargaining, the City’s act of referring the issue to binding arbitration was an unfair labor practice: “The parties were not required to bargain over the composition of the bargaining unit, and by taking its proposal to conciliation, the City attempted to change the unit’s composition by a method other than the only three methods available. It was reasonable for SERB to determine that the City was not negotiating in good faith with the intention of reaching an agreement, and SERB’s decision did not conflict with any statute.”

The Court concluded its opinion with the observation that “it may seem an anomaly that newly-appointed assistant police chiefs will not receive the protections afforded to classified employees under civil service laws but will remain in the Union and be subject to the provisions of the contract. However, the charter amendment makes no mention of the exclusion of the chiefs from the bargaining unit and thus has no effect on the bargaining unit’s composition. And, even if it did, Cincinnati voters could not override state law on this issue. The Conciliator, SERB, the Magistrate, and the trial Court all got it right, and we affirm the trial Court’s judgment it so held.”

City of Cincinnati v. State Employment Relations Board, 2009 WL 1741846 (Ohio App. 2009).

This article appears in the September 2009 issue