ULP Matter # 6

Board Meeting Date:  5-1-14

INVESTIGATOR'S MEMORANDUM

TO:THE HONORABLE STATE EMPLOYMENT RELATIONS BOARD

FROM:Judy Knapp, Labor Relations Specialist

DATE:April 3, 2014

RE:2014-ULP-02-0021, Parma Education Association, OEA/NEA v. Parma City School District Board of Education


PARTIES:Parma Education Association, OEA/NEA
6165 Pearl Road
Parma, OH 44129

REP:Kathleen K. McKinley, Esq.
Baasten, McKinley and Co., LPA
4150 Belden Village Street, Suite 604
Canton, OH 44718                                                                      
(330) 492-0550

Parma City School District Board of Education
5311 Longwood Avenue
Parma, OH 44134
(440) 842-5300

REP:Eric Johnson, Esq.
Walter Haverfield LLP
1301 East 9th Street, Suite 3500
Cleveland, OH 44114
(216) 928-2972


SUMMARY OF CHARGE

On February 10, 2014, Parma Education Association, OEA/NEA (Union/Charging Party) filed an unfair labor practice charge against Parma City School District Board of Education (District/Charged Party). The Union alleges the District violated Ohio Revised Code §4117.11 (A)(1) and (5) by directly dealing with its members regarding an outstanding grievance as part of an attempt to "divide and conquer" the members.


FINDINGS UPON INVESTIGATION

The Union is the deemed-certified bargaining representative for the employees identified in Article 1.01 per the agreement with the District. The parties' collective bargaining agreement expired on July 31, 2013. The parties are currently in negotiations for a successor agreement.  The grievance process results in final and binding arbitration.

2.By way of background, on September 17 and 24, 2012, the Union filed two (2) grievances regarding a restructured school day for teachers at three (3) middle schools. The grievances are known as the "6th Assignment Grievances." The District challenged the arbitrability of the grievances. On November 6, 2013, the arbitrator found that one (1) of the grievances was not arbitrable based on a timeliness issue, but the remaining grievance was arbitrable. It must be noted that this arbitrator did not rule on the merits of the remaining grievance. The arbitrator directed the parties to proceed with the remaining grievance by scheduling a merit hearing. The Union states that the parties held several merit meetings on the grievance over the course of a few days.

3.On January 22, 2014, Human Resources Director, Cassandra Johnson, invited Union President, Jeff Wensing, and Vice-President, Maureen Neville, to attend that afternoon's Building Administrators' meeting. The Union states that during the meeting, the Superintendent presented an "Arbitration Contingency Plan" (Plan) to all of the Administrators. The District also presented a Power Point presentation outlining the Plan.  The Union maintains that the information the District provided was "inaccurate, misleading and highly critical" of the Union and its leadership.

4.The document presented by the Superintendent states in part: "I remain confident confidant that we will receive a favorable result [at the arbitration]…However, in the unlikely event the result is not favorable, we need to prepare for such ramifications and, given the anticipated timing of the arbitrator's decision, that contingency planning must start now."  The document goes on to outline what would take place if the District lost at arbitration: Reductions in Force (RIFs), reverting back to the old schedule, course eliminations, class size increase, etc. (Plan is Exhibit C in the Charging Party's position statement).  The same information was reiterated in the Power Point presentation.

5.The Union states that during the meeting, Ms. Johnson advised the Administrators that they were to begin informing the "individuals" [bargaining-unit members], that their positions/jobs may be in jeopardy through a RIF if the Union prevailed at arbitration.

6.The District denies that the Plan, "even if shared" with the members, constitutes direct dealing.  The District contends that the content of the information does not contain bargaining proposals or the status of negotiations.  The District maintains that it had a "lawful, management right to share the information." The District asserts that there was no attempt to by-pass the Union since they were invited to the January 22nd meeting.

7.The Union's Secretary, Sue Messinger, sent an email to all the Union's Building Representatives after the January 22nd meeting, informing them that the District planned to meet with the members about the Plan. The email explained that the District's information was "inaccurate, misleading and constituted a blatant attempt to divide the members by intimating that their positions and/or jobs are in jeopardy." The email asks that the members inform the Building Representatives of any meetings and then report them to the Union President.  The email also states "…that this is another example of the current administrations' 'divide and conquer' mentality.  Their intent is to create panic among the members."  (Email is Exhibit E in the Charging Party's position statement)

8.The District states that the Plan is a "matter of public record as well as a permissible discussion of the operational financial consequences if the District does not prevail at arbitration." The District contends that due to the timing of the decision, it had to begin to plan in January of 2014 for the next school year in the event it did not prevail at arbitration.

9.On January 23, 2014, Ms. Johnson contacted Mr. Wensing by phone and "expressed her discontent" that he had communicated with his Building Representatives regarding the District's plan to meet with the members about the Plan.  The Union alleges that Ms. Johnson also stated that Mr. Wensing "had no right" to discuss the Plan with his members and then "demanded" a copy of the email that had been sent to the Building Representatives.

10.The District maintains that the Plan did not include any request for the employees to take action, nor was there an offer of any type to the members. The District asserts it did not "editorialize" any of the information contained in the Plan, but did set forth the operational approach it would need to implement. The District states that the Plan is similar to past communications it has made to the members regarding contingency plans which depended on the outcome of a levy campaign.  The District states that if it does not prevail at arbitration, it would be required to pay additional compensation to all the middle school teachers under the current schedule and it would not be able to financially maintain that schedule.

11.The Union states that between February 13 and February 20, 2014, the District held meetings with its members to discuss the effects of the Plan. The Union maintains that the meetings "coincidently" began following the third (3rd) day of the arbitration hearing for the "6th Assignment Grievance" which had precipitated the Plan.  (Plan meeting dates are located in the Charging Party's supplemental response)

12.The Union maintains that after the meetings, President Wensing had to visit the various buildings to speak with the less senior teachers who were "nervous/scared" about losing their jobs if the District did not prevail in the arbitration.  The Union states that President Wensing had to explain that the Union's remedy of the arbitration was not to redo the structure of the teachers' schedules.  The Union asserts that its members viewed the Plan presentation as a "blatant attempt to scare and divide the membership." 

13.As a result of the Plan presentation to the members, the Union submits that President Wensing received "numerous communications" from the members to call for a general membership meeting for the purpose of taking action to withdraw the arbitration in order to prevent the potential layoffs.

14.The Union filed Case No. 2014-ULP-02-0020 against the District also alleging it directly dealt with its members regarding an ongoing subject of negotiations.  On April 3, 2014, the Board, under the circumstances in that case, found probable cause to believe that the Superintendent's actions may constitute a direct dealing violation.


DISCUSSION

The Union alleges the District violated Ohio Revised Code §4117.11 (A)(1) and (5) by directly dealing with its members regarding an outstanding grievance as part of an attempt to "divide and conquer" the members.

In the case of In re Pickaway County Human Services Dept., SERB 93-001 (3-24-93),   affirmed SERB v. Pickaway Human Services Dept, 1995 SERB 4-46 (4th Dist Ct App, Pickaway, 12-7-95), SERB held that when a violation of Ohio Revised Code § 4117.11(A)(1) is alleged, the appropriate inquiry is an objective one rather than a subjective one. It must be determined whether, under all of the facts and circumstances, one could reasonably conclude that employees were interfered with, restrained, or coerced in the exercise of their O.R.C. Chapter 4117 rights by the employer's conduct.  A thorough review of the circumstances under which the alleged misconduct occurred and its likely effect on the guaranteed rights of employees must be part of the inquiry. The statements or alleged threats should be viewed in the context of the totality of conduct and the circumstances under which they were made.

In the case of Mentor Exempted Village School District Board of Education v. SERB, 76 Ohio App 3d. 465 (11th Dist. 1991), the court affirmed SERB's reasoning and held that Ohio Revised Code § 4117.11(A) does not require that the employer know that its action is in violation of the law, but only that the act was intentional in the sense that it was not a bona fide error and that its result, regardless of the intent, was to disrupt the relationship between the union and its members.

Information gathered during the investigation reveals that pursuant to Mentor, the Superintendent's action of having the Building Administrators meet with the bargaining-unit members regarding the Arbitration Contingency Plan, could interfere, coerce or restrain employees in the exercise of their guaranteed right to have the grievance heard at an arbitration hearing. The Superintendent's mandate for the Building Administrators to meet with the members regarding the Plan and its potential effects on their jobs/positions could have a chilling effect on members and their relationship with the exclusive bargaining representative. In fact, after the employees heard of the contingency plan, the Union had to assuage the employees' fears of what could happen should the Union prevail in arbitration. The meetings, in the Union's terminology, seem to be "the District's attempt to divide and conquer" the members.

The District, on the other hand, contends that the content of the information does not contain bargaining proposals or the status of negotiations and that it had a "lawful, management right to share the information." This matter is best addressed through a hearing.

RECOMMENDATION

That the Board find probable cause to believe an unfair labor practice has been committed, order the parties immediately to ULP mediation for a period not to exceed 45 days, authorize the assigned mediator, after consultation with the parties, to issue and e-mail a mediator's procedural order, including date, time, and location of mediation within the time period designated. If the mediation is unsuccessful, authorize the issuance of a complaint and refer the matter to hearing to determine if Charged Party violated Ohio Revised Code § 4117.11(A)(1) but not (5) by meeting with the Charging Party's members regarding an ongoing grievance and the consequences to the members if the Charged Party did not prevail in the grievance, as part of an attempt to "divide and conquer" the members.