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Youngstown is asking the Ohio Supreme Court to overturn a 7th District Court of Appeals' decision to permit the city's firefighters union to engage in binding arbitration over a grievance about promotions and out-of-rank pay because the "case is one of public and great general interest."
The firefighters union disagrees and its attorney wrote the appeals court and Mahoning County Common Pleas Court Judge Maureen Sweeney have ruled in the union's favor and the decisions are upheld by federal and state laws.
In those two courts, the city unsuccessfully argued the union contract requires firefighters to file grievances within two weeks of an occurrence, and it waited several months so the request for an arbitrator was invalid.
The union successfully argued the issue is still ongoing, and the arbitration request was timely and proper.
Brooks Boron, an attorney for the union, wrote in a Wednesday filing with the Supreme Court the union contract "contains a broad arbitration provision" and the city's argument about timeliness "is a procedural question and is for the arbitrator to decide."
Boron added the city's "arguments are meritless and unsupported by both federal and Ohio law. As such, respectfully, the court should decline jurisdiction."
Jason Small, the city's senior assistant law director, wrote, "A significant hole exists at the bottom of collective bargaining law in Ohio, one that usually escapes the court's attention, but, in this appeal, finds occasion to appear. Assuming the subject matter of a grievance is arbitrable by agreement, are threshold considerations of arbitrability similarly subsumed, even if the agreement omits granting the arbitrator such express authority? The city of Youngstown argued below that no, this cannot be the case."
Small added, "The appeals court improperly held that an arbitrator, not a trial court, must review the timeliness of a request to arbitrate even when an agreement fails to grant the arbitrator such authority. This harmful result must be undone."
Small asked the Supreme Court to reverse the appeals court's March 13 decision.
Another option is to have the State Employment Relations Board handle the matter, he wrote.
Boron responded the city raised a single "meritless procedural objection" about the timeliness and lost twice on the issue. He wrote procedural objections are for an arbitrator to decide.
In its decision, the court of appeals stated, "We find the timeliness of the grievance is a procedural issue, which requires an interpretation of the CBA (collective bargaining agreement) and must be determined by an arbitrator. As a consequence, the city's assignments of error have no merit and the judgment entry of the trial court sustaining the complaint to compel arbitration is affirmed."
ONGOING ISSUE
This issue was the latest in a series of arguments between the two sides on battalion chief positions with the union continuously winning court cases.
The appeals court in December 2021 agreed with the union and SERB that the city illegally retaliated against the firefighters' union when it agreed to provide upgrades to the department's radio equipment and then decided to save the money from that expense by eliminating three battalion chief positions through attrition in September 2019.
The appeals court also upheld a common pleas court decision that failing to promote a captain, Chad Manchester, to a vacant battalion chief's position was contempt of court.
City council in February 2022 voted to restore the three positions, two of which were vacant, to comply with the court.
The city promoted Manchester from captain to battalion chief in March 2022.
But it wasn't until February 2023 that the city promoted Tim Frease from captain to battalion chief. Sil Caggiano retired in June 2021 as a battalion chief.
The city administration contends a position isn't vacant until Mayor Jamael Tito Brown determines that to be the case because a civil service test has to be conducted and a candidate selected. A test was held in November 2022.
During the time between Caggiano's retirement and the appointments, the union argues its members should have been paid for working out of rank and deserve back pay. No one actually worked out of rank, but the union claims a battalion chief position should have been established shortly after Caggiano retired that would have resulted in lower-ranked firefighters being promoted so its members are entitled to the additional pay.
About a dozen union members are owed about $100,000, according to the union's lawsuit.
Because back pay wasn't granted and the promotion wasn't timely, the union filed a grievance Aug. 4, 2022.
The city denied the grievance four days later on the claim it was untimely and without addressing its merits.
The union responded Aug. 25, 2022, stating the grievance is timely because the city continues to violate the contract "every day that the city refuses to compensate bargaining unit members for time that they should have had in rank through back pay and any other benefits lost as a result of the continuing violation."
The city again on Sept. 8, 2022, denied the grievance contending it was untimely. Four days later, the union said it was going to take the matter to binding arbitration, but the city refused to participate. The union filed the lawsuit Dec. 19, 2022.
Sweeney ruled June 30 the union contract has a "broad arbitration clause and the subject matter of the instant grievance is covered by" that clause so the "grievance must be resolved through the agreed upon grievance and arbitration procedure."
The city appealed the decision July 25. The appeals court ruled March 13 in favor of the union.
Over the past six-plus years, the firefighters union has filed numerous grievances, unfair labor practices and lawsuits against the city.
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