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City of Parma v. Parma Fire Fighters Association

Court of Appeals of Ohio, Eighth District

July 3, 2013

CITY OF PARMA PLAINTIFF-APPELLEE
v.
PARMA FIRE FIGHTERS ASSOCIATION, LOCAL 639 DEFENDANT-APPELLANT

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-749123.

ATTORNEYS FOR APPELLANT William E. Froehlich Ryan J. Lemmerbrock Susannah Muskovitz Muskovitz & Lemmerbrock, L.L.C. The BF Keith Building

ATTORNEYS FOR APPELLEE Timothy G. Dobeck Director of Law City of Parma Patrick J. Hoban Stephen S. Zashin Zashin & Rich Co., L.P.A. Timothy B.Miller Assistant Prosecutor City of Parma

BEFORE: Keough, J., Jones, P.J., and E.A. Gallagher, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, J.

{¶ 1} Defendant-appellant, Parma Fire Fighters Association Local 639 (the "union"), appeals from the trial court's judgment denying its motion to show cause against plaintiff-appellee, the city of Parma (the "city"). For the reasons that follow, we reverse and remand with instructions to the trial court to order the city to immediately pay back pay and benefits to Anthony DeCarlo from December 3, 2010 until August 15, 2012.

I. Background

{¶ 2} The city and the union are parties to a collective bargaining agreement ("CBA"). Under the CBA, disputes between the city and the union concerning the application and interpretation of the agreement must be resolved through final and binding arbitration.

{¶ 3} Anthony DeCarlo had been a Parma fire fighter for 15 years before the city discharged him on December 8, 2009, because, the city alleged, DeCarlo had tested positive for cocaine during a random drug test and was dishonest about his drug use when questioned by city representatives after the test. The union filed a grievance on DeCarlo's behalf, contesting the discharge for lack of just cause under the CBA. The city denied the grievance and the union requested arbitration. On December 3, 2010, after a hearing, the arbitrator issued his award. He found that the city did not have just cause to terminate DeCarlo and ordered that he be "promptly reinstated" to his former job without retroactive back pay or benefits.

{¶ 4} The city subsequently filed an application in the common pleas court to vacate, modify, or correct the arbitration award. The union filed a counter-application for an order confirming and enforcing the award. In its counter-application, the union asked the court to order the city to (1) fully comply with the arbitrator's award by immediately reinstating DeCarlo with back pay and reimbursement for lost benefits from December 3, 2010 (the date of the arbitrator's award) until his reinstatement date; and (2) pay pre- and postjudgment interest from December 3, 2010 until DeCarlo was reinstated because the city had refused to comply with the arbitrator's order. The union also asked the court to hold a hearing to determine whether the city's conduct in not promptly reinstating DeCarlo was frivolous and warranted an award of attorney fees under R.C. 2323.51(B)(2).

{¶ 5} On September 1, 2011, the trial court issued its order confirming and enforcing the arbitrator's award. Specifically, the judgment entry stated:

[T]he Arbitration Award is confirmed and to be enforced. This Court denies [the union's] request for an award of interest, as the Award made by Arbitrator Nelson does not award the payment of money. Finally, [the union's] request for a hearing to determine attorney's fees pursuant to R.C. 2323.51 is denied.

{¶ 6} The city appealed the trial court's judgment. On March 8, 2012, this court affirmed the trial court's judgment confirming and enforcing the arbitration award. Parma v. Parma Fire Fighters Assn. Local 639, 8th Dist. No. 97342, 2012-Ohio-932. On July 25, 2012, the Ohio Supreme Court declined jurisdiction to consider the city's appeal.

{ΒΆ 7} On August 15, 2012, the city reinstated DeCarlo to his former position. That same day, however, the city placed him on leave pending the outcome of a disciplinary hearing relating to allegations that DeCarlo had testified falsely ...


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