## Facts

- Ohio’s public-sector collective-bargaining law required public employers to bargain in good faith with an exclusive representative over wages, hours, and terms and conditions of employment.
- The City of Akron (City) had a collective-bargaining relationship with the police union representing the Akron Police Department.
- The parties’ collective-bargaining agreement was silent on layoffs.
- Separate City Civil Service Commission Rules (CSCR), applicable to City employees generally, contained provisions addressing layoffs.
- As the parties approached expiration of the agreement in 2009, the City indicated it wanted the ability to pursue layoffs, and the City and union discussed the issue; they reached an arrangement that avoided layoffs at that time, and the union stated it would address layoffs in the next bargaining round.
- In successor-contract negotiations beginning in late 2009, the union proposed contract language governing layoffs.
- The City rejected the union’s proposal because the City preferred that layoffs continue to be handled through the CSCR rather than being placed in the collective-bargaining agreement.
- The City stated it would negotiate over the substance of the CSCR layoff rule and would take a proposed amendment to the Civil Service Commission, but only if the union first withdrew its contract proposal on layoffs; the union refused to withdraw the proposal.
- In March 2010, while negotiations were ongoing and shortly before the parties reached impasse, the City unilaterally introduced a proposed change to the CSCR concerning layoffs that incorporated part of the union’s proposed contract language.
- The union filed an unfair labor practice (ULP) charge alleging that the City failed to bargain in good faith over layoffs.
- SERB found probable cause, issued a complaint, and an administrative law judge found that the City’s conduct amounted to bad-faith bargaining; SERB adopted the findings and issued an order.
- The City appealed to the Summit County Court of Common Pleas, which affirmed SERB’s order, and the City then appealed to the Ninth District Court of Appeals.

## Issues

1. Whether SERB could find that layoffs are a mandatory subject of bargaining under R.C. 4117.08(A) and that the City had a duty to bargain in good faith over the union’s layoff proposal.
2. Whether substantial evidence supported SERB’s conclusion that the City bargained in bad faith (including by conditioning discussion of layoff rules on withdrawal of the union’s contract proposal).
3. Whether the City’s unilateral pursuit of changes to the CSCR regarding layoffs during negotiations supported a finding of a ULP under R.C. 4117.11(A)(5).
4. Whether the common pleas court erred in affirming SERB’s order under the applicable administrative-review standards.

## Decision

- The Ninth District Court of Appeals affirmed the judgment of the Summit County Court of Common Pleas.
- The court held that SERB’s ULP determination was supported by substantial evidence and was not unreasonable or unlawful.
- The court accepted SERB’s assessment that the City’s bargaining conduct over layoffs reflected bad faith and upheld SERB’s order against the City.

## Legal Principles

- Public employers must bargain in good faith with the exclusive representative over “wages, hours, [and] terms and other conditions of employment.” R.C. 4117.08(A).
- A refusal to bargain collectively in good faith with the employees’ exclusive representative is an unfair labor practice. R.C. 4117.11(A)(5).
- SERB is entitled to significant deference in ULP cases, particularly on mixed questions involving bargaining conduct and good faith; reviewing courts do not substitute their judgment for SERB’s where SERB’s findings are supported by substantial evidence and are not unreasonable or unlawful. See, e.g., *State Emp. Relations Bd. v. Adena Local School Dist. Bd. of Edn.*, 66 Ohio St.3d 485 (1993) (describing the deferential review framework).
- A party’s bargaining posture may support a bad-faith finding when it effectively prevents meaningful negotiation over a mandatory subject—for example, by insisting the topic be removed from contract talks as a condition of any discussion elsewhere.
- Unilateral action during negotiations on matters being bargained—such as seeking changes to governing rules covering a mandatory subject—may be considered by SERB as evidence bearing on whether the employer bargained in good faith.

## Conclusion

The Ninth District affirmed SERB’s unfair-labor-practice order because the record contained substantial evidence that Akron failed to bargain in good faith over layoffs during successor negotiations, including by conditioning any discussion of layoff rules on the union’s withdrawal of its contract proposal and by pursuing civil-service rule changes on layoffs while bargaining was underway.


City of Akron v. SERB, 2013 Ohio 1213, 195 L.R,R.M. (BNA) 2582 (2013)