Abrams-Rodkey v. Summit County Children Services

{¶ 36} I respectfully dissent from the majority decision regarding Assignment of Error Number One as I believe that the review commission's decision is against the manifest weight of the evidence. The review commission's findings of fact do not support its conclusion that the union failed to maintain the status quo. Moreover, the trial court clearly lost its way and created a manifest miscarriage of justice when it affirmed the review commission's decision.

{¶ 37} Under the status quo test, if employees agree to continue working under an expiring contract and their employer refuses to so extend the expiring contract and maintain the status quo, the resulting work stoppage constitutes a lockout. It is undisputed that on July 13, 2003,¹ the union, as representatives of SCCS's employees, offered in writing to work under the same terms and conditions of the current contract while negotiations continued. It is also undisputed that SCCS stated in writing on July 13, 2003, "Effective at 11:59 today, all previous and existing offers made by [SCCS] to the Union are completely withdrawn and any and all tentative agreements previously entered into are null and void."

{¶ 38} In its findings of fact, the hearing officer found that after delivery of the statement by SCCS and prior to the midnight deadline, SCCS orally informed the union that it would be open for business and that the union members — i.e., SCCS employees — could work under the terms and conditions contained in the expiring agreement. The union negotiators dispute such notice. The review commission also found that the union maintained that the employees would not work without a new agreement or an extension under the same terms and conditions of the expiring agreement.

{¶ 39} Assuming arguendo the truth of SCCS's claim of an oral offer to permit employees to continue to work under the same terms and conditions, the SCCS writing that unambiguously provided that all previous offers, including the oral offer to continue employment under the same terms and conditions, shall be "completely withdrawn," voided the oral offer. There is no dispute that the union agreed to work under an extension of the expired agreement; thus, the writing that became effective at 11:59 p.m. on July 13, 2003, clearly upset the status quo.

{¶ 40} There is no evidence in the record that SCCS ever officially and unambiguously declared after its 11:59 deadline that it had intended or would carve out the offer for continued work under the same terms and conditions as the expired contract from its unambiguous declaration of withdrawal of all offers. SCCS elected to use its written declaration of the 11:59 deadline as a bargaining tactic. It should not now be heard to claim that it did not mean what the writing declared. The results would be the same had the union chosen to employ this tactic. The parties are equally sophisticated in the art of negotiation and in this case SCCS used a tactic without careful regard for its meaning and implementation.

{¶ 41} Moreover, I am not persuaded by the fact that some employees returned to work on July 14, 2003. Such a fact is not evidence that the union upset the status quo; it merely shows that some employees went to work. The status quo test reviews the facts at the time that negotiations were ongoing, not after the lockout has occurred. See Aliff v. Ohio Bur. of Emp. Serv., 9th Dist. No. 20828, 2002-Ohio-2642, 2002 WL 1263975, at ¶ 14. At 11:59, one minute before the contract was to expire, SCCS's letter took effect, and all of its previous offers were off the table, leaving the employees with no indication of whether they could return to work the following day, what would happen if they did return, or the terms and conditions of their employment.

{¶ 42} For the above reasons, I would disagree with the majority and overrule the decision.

¹ The contract expired at midnight on July 13, 2003.