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Board Opinion 2018-001

STATE OF OHIO

BEFORE THE STATE EMPLOYMENT RELATIONS BOARD


In the Matter of

State Employment Relations Board,

Complainant,

and

Revere Local School District Board of Education,

Respondent.

SERB Opinion: 2018-001
Case Number: 2017-ULP-09-0154

Board Date: 5/3/2018
Date Issued: 5/3/2018

ORDER (OPINION ATTACHED)

Before Chair Zimpher, Vice Chair Schmidt, and Board Member Lumpe: May 3, 2018.

On September 5, 2017, the Revere Education Association (“Charging Party” or “Intervenor”) filed an unfair labor practice charge against the Revere Local School District Board of Education (“Employer” or “Respondent”) alleging that the Employer violated R.C. 4117.11(A)(1) and (5), by refusing to bargain over the creation and implementation of a document entitled, “Administrative Guidelines: Employee Code of Excellence” which contains, inter alia, provisions for suspension and discharge of employees.

On November 16, 2017, the State Employment Relations Board (“SERB” or “Board”) found probable cause to believe that the Revere Local Schools Board of Education, had committed or was committing a violation of R.C. 4117.11(A)(5), but not (A)(1).

On March 29, 2018 the parties' submitted joint stipulations. On April 5, 2018 the parties' waived oral argument on this matter and submitted simultaneous briefs to this Board on April 12, 2018.

After considering the unfair labor practice charge, the parties' stipulations and briefs, and the entirety of the information contained in the record, the Board, for the reasons set forth in the attached Opinion, incorporated herein by reference, finds that Revere Local School District Board of Education, violated R.C. 4117.11(A)(5) when it refused to bargain over promulgation of the policy entitled “Administrative Guidelines: Employee Code of Conduct”.

Revere Local School District Board of Education, is hereby ORDERED to take the following actions:

A. CEASE AND DESIST FROM:

  1. Refusing to bargain collectively with the Exclusive representative of certain of its employees in violation of R.C. 4117.11(A)(5).

B. TAKE THE FOLLOWING AFFIRMATIVE ACTION:

  1. Rescind the “Administrative Guidelines: Code of Employee Excellence” and return conditions to status quo ante.
     
  2. Bargain in good faith with the Revere Education Association on components of discipline which affect wages, or other terms and conditions of employment, or which would continue, modify or delete existing terms of the CBA before re-promulgating revised Administrative Guidelines: Code of Employee Excellence or similar disciplinary policy.
     
  3. Post for 60 consecutive calendar days in all the usual and customary posting locations where bargaining-unit employees represented by the Revere Education Association work, this Notice to Employees furnished by the State Employment Relations Board stating that the Revere Local School District Board of Education shall cease and desist from the actions set forth in paragraph (A) and shall take the affirmative action set forth in paragraph (B); and
     
  4. Notify the State Employment Relations Board in writing within 20 days from the date the Order becomes final of the steps that have been taken to comply herewith.

It is so ORDERED.

ZIMPHER, Chair, SCHMIDT, Vice Chair, and LUMPE, Board member, concur.

W. CRAIG ZIMPHER, CHAIR

TIME AND METHOD TO PERFECT AN APPEAL

You are hereby notified that an appeal 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, on this 3rd day of May, 2018.

ERIN E. CONN, BOARD CLERK

OPINION

ZIMPHER, Chair:

This unfair labor practice case comes before the State Employment Relations Board (“SERB” or “Board” or “Complainant”) on joint stipulations and legal briefs of the Intervenor, Revere Education Association (“Union” or “REA”) and Respondent, Revere Local School District Board of Education (“Respondent” or “BOE” or “School Board”). For the reasons set forth below, we find that the BOE did violate R.C. 4117.11(A)(5) when it refused to bargain over promulgation of the policy entitled “Administrative Guidelines: Employee Code of Conduct”.

I. JOINT STIPULATIONS

The Board adopts the parties' joint stipulations, which are set forth below:

  1. The Revere Local School District Board of Education is a “public employer” as defined by R.C. 4117.01(B).
     
  2. The Revere Education Association, OEA/NEA is an “employee organization” as defined by R.C. 4117.01(D).
     
  3. The Union is the exclusive bargaining representative of those employees identified in Article 1.01 of the collective bargaining agreement between the Respondent and the Intervenor.
     
  4. The Union filed an Unfair Labor Practice Charge with the SERB on September 5, 2017 which alleged violations of R.C. 4117.11, specifically R.C. 4117.11(A)(1) and (5), pursuant to and in accordance with R.C. 4117.12(B) and O.A.C. Rule 4117-7-01.
     
  5. On November 16, 2017, the SERB found probable cause to believe that the School Board had committed or was committing a violation of R.C. 4117.11(A)(5), but not (A)(1). SERB dismissed the R.C. 4117.11(A)(1) allegation, for lack of probable cause, but on the R.C. 4117.11(A)(5) allegation, SERB referred the matter to hearing, and directed the matter to mediation.
     
  6. The School Board and Union participated in a SERB conducted mediation on January 3, 2018 but reached no agreement. Subsequently, the School Board and Union attempted to further mediate the issue privately but were unsuccessful.
     
  7. The School Board and Union are parties to a collective bargaining agreement that is effective July 1, 2015 through June 30, 2018. The parties' agreement contains a grievance-arbitration process that is binding.
     
  8. During negotiations for the current collective bargaining agreement, the School Board was concerned about certified staff maintaining appropriate behavior. The parties were unable to reach an agreement on the issue and a code of professional conduct was not made part of the current CBA. However, the parties agreed on an “intent statement,” which stated: “The Licensure Code of Professional Conduct for Ohio Educators indicates the aspiration for all educators and provides standards by which to judge conduct.” The discipline of members of the Union's bargaining unit are subject to the provisions of Article 8, Discipline and Discharge of their collective bargaining agreement.
     
  9. On April 19 and 20, 2017, The School Board held a meeting to discuss the development of an Employee Code of Excellence. The representatives for the Union did not attend and only two (2) bargaining unit members of the Union attended the meeting.
     
  10. On or about April 4, 2017, Union President Paul Fisher sent an email to Superintendent Matthew Montgomery expressing “some concerns about this group you are convening to discuss the employee handbook. Please let me know when you have some time to speak with me.”
     
  11. On or about April 13, 2017, the Union President sent a communication to Superintendent Montgomery prior to the meeting referred to in Paragraph 9 of these Stipulations. The communication stated in part: “I am bringing these concerns to you because I want you [to] reconsider your desire to have this meeting next week. I do not believe it will be a productive or useful meeting. The need for this handbook is not clear. If the handbook is created, it will either be a violation of our negotiated agreement or have no repercussions for those who break the rules. Please reconsider.”
     
  12. On or about April 18, 2017, Union President Fisher sent an email to the Union's members, stating in part: “You all have been invited to participate in the creation of a code of excellence handbook for all of the Revere staff members during the next two days. I appreciate your willingness to serve. The REA leadership has been discussing this issue with the administration for the past two months and we are at impasse. REA's position is that this is a change to our agreement and should be part of the negotiations process. The administration disagrees. We have not been able to reach and [sic] agreement about what should and should not happen during the process so we have decided not to participate. We are encouraging the OAPSE committee members to do the same.”
     
  13. On or about April 18, 2017, Superintendent Montgomery sent an email to all high school, middle school, and elementary school teachers inviting them to participate on April 19 and April 20 in the process to develop an Employee Code of Excellence for the District. In his email, Superintendent Montgomery acknowledged that “REA leadership has decided not to attend the meetings,” but the Superintendent still encouraged the teachers to attend the meetings.
     
  14. In meetings held on April 19 and 20, 2017, the content of an employee code of excellence was discussed with these individuals in attendance. The one page “Employee Code of Excellence,” with no reference to discipline, was approved by the School Board its May 16, 2017 Meeting.
     
  15. On or about April 25, 2017, Union Labor Relations Consultant Lee Blanden replied to Union President Fisher's April 18 email and stated “[l]et us not forget that we executed a written intent statement which included the current REA Agreement relative to professional conduct.”
     
  16. A copy of the Revere Local School District's Administrative Guidelines: Employee Code of Excellence was presented to the Union's President on or about August 16,2017.
     
  17. The Revere Local School District's Administrative Guidelines: Employee Code of Excellence contains provisions for “discipline, such as verbal warnings, official reprimands, suspensions and terminations.”
     
  18. Suspension of teachers for disciplinary reasons is not provided for in Article 8, Discipline and Discharge, of the collective bargaining agreement between the Union and School Board. “Pursuant to O.R.C. 3319.16 (Termination of Contract by Board of Education), “[t]he board may suspend a teacher pending final action to terminate the teacher's contract if, in its judgment, the character of the charges warrants such action.”
     
  19. The Revere Local School District's Administrative Guidelines: Employee Code of Excellence contains procedures for “records management, such as Unofficial Supervisor Files and Archived Material Files.”
     
  20. Article 9, Personnel Files, of the collective bargaining agreement between Intervenor and Respondent states, “The personnel file for each bargaining unit member shall be maintained by the Board. This shall be considered the only official file and shall be confidential to the extent permitted by law.”
     
  21. On or about August 16, 2017, Labor Relations Consultant Blanden sent a demand to bargain, via email and regular mail, to Superintendent Montgomery, regarding the “Revere Local School District's Administrative Guidelines: Employee Code of Excellence.” Blanden's letter stated in part: “REA negotiated an intent statement reflecting that 'The Licensure Code of Professional Conduct for Ohio Educators indicates the aspiration for all educators and provides standards by which to judge conduct.1 The parties never reached an agreement relative to any other educators' disciplinary procedures for any employee code of conduct. The disciplinary procedures incorporated in the … [Handbook] impact terms and other conditions of employment. Therefore, REA hereby requests formal negotiation of the … [Handbook]. Please provide some possible dates for this mandatory subject of bargaining.”
     
  22. On or about August 25, 2017, Labor Relations Consultant Blanden sent Superintendent Montgomery a second email, after receiving no response to the August 16, 2017 correspondence. Blanden requested a response before August 31, 2017.
     
  23. On August 28, 2017, Superintendent Montgomery sent a written response to Blanden.

II. ADDITIONAL FINDING OF FACT

  1.  Superintendent Montgomery's August 28, 2017 response, which is Joint Exhibit K, states in pertinent part, “The…District does not agree that the implementation of the Administrative Guidelines: Employee Code of Excellence gives rise to a mandatory subject of bargaining obligation…they are…the Board's exercise of its preserved managerial right…[t]herefore the District will not engage in negotiations.”

III. DISCUSSION

The School Board unilaterally created and implemented the 158-page Administrative Guidelines: Employee Code of Excellence (the ”Code of Excellence”) without bargaining. This fact is not disputed. It is also not disputed that the Union demanded to bargain it.
The essential issue, then, before this Board is whether the Code of Excellence is or became a mandatory subject of bargaining.

R.C. 4117.08(C)(5) states that a public employer shall have the right to “Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote, or retain employees…” unless otherwise agreed in a collective bargaining agreement.”

However, the above right is qualified:

The employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment, and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement. (Emphasis added.)

R.C. 4117.08(C).

The Ohio Supreme Court interpreted the inherent tension within R.C.4117.08(C) thus:

Accordingly, if a public employer intends to implement a decision which “affects” wages, hours, terms and conditions of employment of a bargaining unit, then the employer must bargain on the issue. This is so even if the question is reserved for managerial discretion.

Lorain City School Dist. Bd. of Educ. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, (1988).

The holding in Lorain seemed to turn almost every enumerated managerial right into one that affected terms and conditions that must be bargained. In re SERB v. Youngstown City School Dist. Bd. of Ed., SERB 95-010 (6-30-95) rejected the broad holding of Lorain as dictum. Youngstown also reversed In re City of Lakewood, SERB 88-009 (7-11-88) (holding that public employers must bargain the enumerated managerial decision itself and not just the impact of the decision). Youngstown remains this Board's precedent. Youngstown set forth a tripartite balancing test to determine whether a subject emanating from an enumerated managerial right but also affecting wages, terms of conditions of employment must be bargained or not:

[I]f a given subject is alleged to affect and is determined to have a material influence upon…terms and other conditions of employment and involves the exercise of inherent management discretion, the following factors must be balanced to determine whether it is 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. Those management decisions which are found, on balance, to be permissive subjects, can be implemented without bargaining the decision unless a contract provision would conflict with it. Any reasonably foreseeable changes in wages, hours, or terms and other conditions of employment that are affected by those decisions and are determined to be permissive subjects of bargaining under the above test must be bargained as soon as practicable and, whenever reasonably practicable, before the announced implementation date if the employee organization makes a timely request to bargain.

In re SERB v Youngstown City School Dist. Bd. of Ed., SERB 95-010 (6-30-95).

Since SERB'S decision in Youngstown, this Board has specifically opined on whether discipline is a mandatory subject of bargaining. “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.” In re Cuyahoga County Sheriff's Department, SERB 99-018 (6-30-99). In Cuyahoga County Sheriff, SERB determined that a new dress code policy which deemed infractions equivalent to an “absence without leave” affected wages.

In Union Twp. Bd. Of Trustees v. Fraternal Order of Police, Ohio Valley Lodge No. 112, 2001-Ohio-8674, the 12th District Court of Appeals upheld the determination of the common pleas court that “disciplinary action involving a demotion, discharge, or suspension without pay relates to conditions of employment and is a mandatory subject of bargaining.”

Union Township was originally an appeal of a SERB appointed Conciliator's award selecting the Union's proposal to incorporate binding arbitration of disciplinary action into the CBA. Conciliation applies to non-striking units only. However, the case has equal import to the instant case, because it persuasively suggests that if discipline was not a mandatory subject of bargaining then it could not be included in a binding award - hence it would not have to be bargained in the first place.

These post-Youngstown authorities firmly suggest that the subject of serious discipline with potential pecuniary impact is a mandatory subject of bargaining. Even before Youngstown, SERB held that bargaining is required for a discipline grid where there is a history of bargaining about such proposals. “Appellees claim imposition of a progressive discipline policy does affect “conditions of employment,” by establishing grounds for discipline on standards other than those set forth in Sec. 3319.16, O.R.C., and it therefore is a subject which must be bargained for before it may be imposed.” Swanton Local School Dist. Bd. Of Educ. v. SERB 1989 WL 515890 (1989), affirming SERB 89-008 (4-12-89).

Moreover, application of the Youngstown factors to the instant case produces the same result:

A. Facts pertinent to Youngstown analysis

1. The Code of Excellence's contents
 
Respondent's 158-page Code of Excellence contains an intricate discipline penalty grid. It regulates the level of discipline base on a multifactor analysis of aggravating and mitigating circumstances including the classic “Douglas Factors” used by the U.S. Merit Systems Protection Board.
The penalties prescribed in the Code of Excellence include “suspension”. This must be read to include suspension without pay as a stand-alone discipline which does not contemplate the Revised Code provision for suspension of teaching contracts pending termination.
 
2. The pre-existing CBA language on Discipline
 
The CBA in the instant case incorporates the Weingarten right for teachers, but does not otherwise speak to discipline for them. It is not even clear if a teacher may grieve any discipline under the CBA.[1] In contrast, the CBA has a just cause provision for minor discipline of support staff and incorporates R.C. 3319.081 for serious discipline such as discharge of support staff.
 
3. History of Bargaining between the Parties
 
The Union places great emphasis on the fact that the parties negotiated an aspirational clause about staff conduct. For the Union, this constitutes a “provision” which takes the subject of disciplinary policy out of the ambit of managerial rights, and turns the issue of discipline wholly into a mandatory subject of bargaining. Alternatively, the Union states that the Code of Excellence is so comprehensive that it certainly must affect terms of employment, and therefore it should be negotiated.

B. Application of the Youngstown tripartite test

Factor 1: Extent of effect on wages and other terms

Undoubtedly, the Code of Excellence potentially affect the wages of teachers under its suspension and discharge provisions. It is also more than likely that the Code of Excellence profoundly affects conditions under which teachers may stay employed by setting forth a progressive discipline grid not heretofore addressed in the CBA for teachers.

Factor 2: Effect on employer's ability to function

Respondent is a school district. On brief, Respondent never asserted that it would be precluded from executing its mission without the Code of Excellence. In fact, Respondent argues that the Code of Excellence is just a recapitulation of existing rules and law. The Code of Excellence is in fact more than that, but Respondent's assertion should be taken as proof that unilateral implementation of the Code of Excellence is not necessary for respondent to satisfy its core mission. There are no exigent circumstances here.

Factor 3: Mediatory influence of collective bargaining

The history of the parties demonstrates that they have bargained about some aspects of discipline in the past in Art. 8 of the CBA. While the recently negotiated “Intent statement” may not demonstrate a concession by the BOE to bargain the issue of discipline permissively, Art. 8 certainly manifests the intention of the parties to bargain the circumstances under which discipline is brought, and the level, at least concerning support staff. The Code of Excellence therefore operates as a unilateral modification to existing terms of the CBA, a fait accompli. Collective bargaining is likely to have a mediatory influence in this case. There is no reason to think that the Parties cannot add to or modify the existing terms of the CBA to incorporate provisions about serious disciplinary action which could affect wages.

C. What exactly must be bargained?

Under application of Youngstown, the Code of Excellence or at least aspects of the Code of Excellence potentially affecting wages must be bargained. Under Cuyahoga County Sheriff, bargaining is required where discipline changes the work rule to change working conditions. However, this does not mean that every aspect of potential discipline policy must be bargained.

Had the CBA contained binding arbitration and a just cause provision for all serious discipline (e.g. suspension, demotion, termination), there is” little that the Code of Excellence could do to upset the existing status quo. This is because the CBA would give the arbitrator the ability to strike provisions of the Code of Excellence as applied which operate to defeat just cause on a case by case basis. Thus, it could be argued that there would be no actual change to the conditions of employment.

It should be noted here that the Board does not, Ipso facto, deem the promulgation of a code of conduct or similar compilation of expected behaviors, such as in the instant case, to be, per se, in violation of Ohio Revised Code Chapter 4117. Indeed, it may well be within, as provided for by said Chapter, the legitimate prerogative of management's “rights”. Nonetheless, such action should be mindful that any adoption of standards, procedures, or other activities must similarly comport with and be inclusive of matters that should be contained in a collectively bargained agreement, e.g., matters potentially affecting wages and related terms of employment.

In this case, the paradigm shifts dramatically because Art. 8 Discipline of the CBA is silent regarding whether discipline for teachers is grievable. Moreover, it does not contain an express just cause provision for teachers.[2] Therefore, the Code of Excellence's progressive discipline grid with prescriptions for suspension and discharge changes the conditions under which an incumbent can keep his or her job without the benefit of collective bargaining. This is the very essence of a R.C. 4117.11(A)(5) failure to bargain collectively with the Union.

We decline to find an additional violation of R.C. 4117.11(A)(5) regarding the inclusion of unofficial files within the Code of Excellence. Article 9 of the CBA reflects the creation of an official file, but does not forbid other types of public records. The Code of Excellence and the CBA are in apparent harmony because the Code of Excellence does not modify or delete the CBA provision on its face.

IV. REMEDY 

Based on the foregoing, an Order with a Notice to Employees will be issued ordering the Revere Local School District Board of Education to take the following actions:

A. CEASE AND DESIST FROM:

  1. Refusing to bargain collectively with the Exclusive representative of certain of its employees in violation of R.C. 4117.11(A)(5).

B. TAKE THE FOLLOWING AFFIRMATIVE ACTION:

  1. (Rescind the “Administrative Guidelines: Code of Employee Excellence” and return conditions to status quo ante.
     
  2. Bargain in good faith with the Revere Education Association on components of discipline which affect wages, or other terms and conditions of employment, or which would continue, modify or delete existing terms of the CBA before re-promulgating revised Administrative Guidelines: Code of Employee Excellence or similar disciplinary policy.
     
  3. Post for 60 consecutive calendar days in all the usual and customary posting locations where bargaining-unit employees represented by the Revere Education Association work, this Notice to Employees furnished by the State Employment Relations Board stating that the Revere Local School District Board of Education shall cease and desist from the actions set forth in paragraph (A) and shall take the affirmative action set forth in paragraph (B); and
     
  4. Notify the State Employment Relations Board in writing within 20 days from the date the Order becomes final of the steps that have been taken to comply herewith.

V. CONCLUSIONS OF LAW

  1. The Revere Local School District Board of Education (“BOE” or “Respondent”) is a “public employer” as defined by R.C. 4117.01(B).
     
  2. Revere Education Association, OEA/NEA (“Union”) is an “employee organization” as defined by R.C. 4117.01(D).
     
  3. The ULP charge was timely filed and properly before this Board.
     
  4. The BOE has violated R.C. 4117.11(A)(5).

VI. DETERMINATION

For the reasons stated above, we find that the Respondent did violate R.C. 4117.11(A)(5) when it refused to bargain with the Intervenor over a discipline policy which affects wages, terms, and other conditions of employment and modifies an existing term of a collective bargaining agreement.

Schmidt, Vice Chair, and Lumpe, Member concur.

FOOTNOTES

  1. There is nothing in the record to suggest that teachers have been suspended in the past as a stand-alone form of discipline, or that these matters were ever arbitrated. No party has alleged that there is a “zipper” clause in the contract preventing the Union from demanding bargaining over new or additional forms of discipline. The mid-term bargaining provision mentioned in Respondent's brief is additional proof that bargaining over serious discipline is appropriately mandatory. Also, contrary to Respondent's implication, the intervenor retained the right to file a charge before this Board, to grieve the matter, or both.
     
  2. The support staff have “just cause” for reprimands. There is no similar provision for teachers.