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Municipal Construction Equipment Operators' Labor Council v. City of Cleveland

November 10, 2011

MUNICIPAL CONSTRUCTION EQUIPMENT OPERATORS' LABOR COUNCIL PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND DEFENDANT-APPELLEE



Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-739944

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.:

Cite as Mun. Constr. Equip. Operators' Labor Council v. Cleveland,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Kilbane, A.J., Rocco, J., and E. Gallagher, J.

{¶1} Plaintiff-appellant, Municipal Construction Equipment Operators' Labor Council ("the Union"), appeals from the orders of the trial court that struck its motion to vacate and modify an arbitration award entered in favor of defendant-appellee the city of Cleveland ("the City"), confirmed that award, and denied the Union's complaint for declaratory judgment. For the reasons set forth below, we affirm.

{¶2} In 2007, following an election conducted pursuant to R.C. 4117.07(C), the State Employment Relations Board (the SERB) certified the Union as the exclusive representative of a bargaining unit composed of a group of employees in Cleveland's water and property-management divisions. State ex rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88. The parties entered into a collective bargaining agreement on February 5, 2007.

{¶3} Under the provisions of the parties' collective bargaining agreement (CBA), a four-step procedure is in place to deal with individual and group grievances.*fn1 The grievance must be reduced to writing within ten working days of the event, but it may be amended at any time prior to the start of Step 3 proceedings. If the grievance procedure has not resolved the parties' dispute, the parties may submit the matter to final and binding arbitration.

{¶4} The undisputed facts indicate that on December 7, 2009, the City sent a letter to the Union requesting various wage and benefit concessions in order to help balance the City's budget and avert layoffs. This was followed by a "Counterproposal" to the Union membership for ratification. The Union rejected the Counterproposal on December 22, 2009, and later that day, the City announced the layoff of five water plant operators. The Union's counsel then inquired as to whether the City would rescind the layoffs in exchange for other concessions proposed by the Union.

{¶5} On December 23, 2009, the Union filed a grievance, alleging that the layoffs were not due to lack of work or lack of funds. On January 4, 2010, prior to the completion of Step 1 of the grievance, the Union voted to accept wage and benefit concessions and signed a Memorandum of Understanding that amended the collective bargaining agreement.

{¶6} The City maintained that the Union's grievance had become moot, but the Union maintained that it had entered into the Memorandum of Understanding by duress in order to avoid the announced layoffs.

{¶7} The grievance proceeded to Step 2, then to Step 3, where the Union repeated its position that the layoffs were not the result of lack of work or lack of funds and that the Memorandum of Understanding was obtained by duress. The City again denied the grievance.

{¶8} On April 16, 2010, the Union demanded arbitration and sought reinstatement of the workers and restoration of all lost wages and benefits. The City maintained that the request for arbitration had become moot, and that by adding the issue of duress, the Union had materially altered the grievance. The issue of arbitrability was bifurcated from the remaining issues and, after considering the parties' briefs and exhibits, the arbitrator issued an opinion finding that the matter was not arbitrable. In relevant part, the arbitrator wrote:

"[N]o layoffs occurred; the City rescinded the layoffs on January 8, 2010. Consequently, the Union's grievance of the matter is moot, because the Union seeks a judgment and remedy on a controversy that no longer exists. * * *

The Union argues that the original grievance was amended to include the issue of duress, which remains to be decided. Article 38, Paragraph 106 [of the collective bargaining agreement] allows the Union to amend a grievance at any time up to the start of the Step 3 meeting and the Union amended the grievance prior to the City's Step 3 response.

The Arbitrator agrees that once the layoffs did not occur, the original grievance was moot. There was no longer a controversy regarding proposed layoffs. If the Union believed that it had entered into the [Memorandum of Understanding] on January 4, 2010, under duress, the Union had 10 working days to file a grievance on the matter. However, the Union did not reduce the issue of duress to writing until March 19, 2010, when it attempted to amend the moot grievance. Even if the amendment is viewed as a new grievance addressing a viable controversy, the grievance was filed approximately two months too late.

The issue of duress does not involve the 'interpretation and/or application and/or compliance with the provisions of this Contract.' The issue of duress is an issue of law and the parties agreed the arbitrator has no jurisdiction over issues of law."

{¶9} On October 26, 2010, the Union filed a complaint with the court of common pleas in which it sought an order vacating the arbitrator's award pursuant to R.C. 2711.10 and resolution of the duress claim by declaratory judgment. The clerk of courts served the complaint on the City on November 2, 2010, but it was not served on outside counsel retained by the City in this matter, as required by R.C. 2711.13.

{ΒΆ10} On November 24, 2010, the Union filed a Notice of Filing of Motion and Memorandum to Vacate and Modify the Arbitration Award, in which it again sought vacation of the award under the provisions of R.C. 2711.10, and argued that it had acted within the three-month time period of R.C. 2711.13 since the arbitration award was not mailed or ...


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