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City of Cleveland v. Laborers International Union Local 1099

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

CITY OF CLEVELAND PLAINTIFF-APPELLANT
v.
LABORERS INTERNATIONAL UNION LOCAL 1099 DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-08-660660

          ATTORNEYS FOR APPELLANT Barbara A. Langhenry Director of Law City of Cleveland Drew A. Carson Austin Tyler Opalich Assistant Law Directors

          ATTORNEYS FOR APPELLEE Joseph J. Guarino Basil William Mangano Mangano Law Offices Co. L.P.A.

          BEFORE: McCormack, J., E.A. Gallagher, A.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, J.

         {¶1} Plaintiff-appellant, the city of Cleveland appeals from the trial court's order of December 16, 2016, in which the trial court awarded Laborers' International Union of North America, Local Union No. 1099 ("Local 1099" or "the union") reasonable and demonstrable lost back pay in the amount of $309, 797.86 following an arbitration award in favor of the union. For the reasons that follow, we affirm.

         Procedural History

         {¶2} Local 1099 is an organization whose workers maintain public parks and malls and other public areas. In 2006, Local 1099 filed a grievance against the city, alleging that the city had violated the parties' collective bargaining agreement and prior settlement agreements by having a private contractor - Downtown Cleveland Alliance ("DCA") and/or Block by Block - perform work traditionally performed by the union. In 2008, the arbitrator determined that the city did, in fact, violate its collective bargaining agreement and letter of understanding with Local 1099, and the arbitrator ordered the city to pay "reasonable and demonstrable lost back pay" to bargaining unit members. The arbitrator retained jurisdiction for 60 days to resolve any issues arising from implementation of the award.[1]

         {¶3} Thereafter, the city appealed the arbitrator's decision by filing with the trial court a motion to vacate the arbitrator's award. In its motion, the city argued that the arbitrator relied on external law, in violation of the collective bargaining agreement ("CBA"), the arbitrator improperly modified the grievance, and the arbitrator incorrectly found the creation of the "Special Improvement District" created a subcontract between the city and DCA and/ or Block by Block. The city argued in the alternative that the trial court should hold its proceedings in abeyance in order for the city to address the purported back pay and overtime damages during the period of time in which the arbitrator retained jurisdiction over this matter.

         {¶4} The union then filed an application to confirm the arbitrator's award. The union also filed a motion to strike the city's motion to vacate, stating that the city failed to serve upon the union a copy of the city's motion pursuant to R.C. 2711.13. In February 2009, the trial court denied the city's motion to vacate the arbitration award and it granted the union's motion to confirm the award. The city appealed. In December 2009, this court affirmed the decision of the trial court, finding that the city failed to comply with the procedural requirements of R.C. 2711.13 and, therefore, the trial court lacked jurisdiction to entertain the city's motion to vacate. See Cleveland v. Laborers Internal. Union Local 1099, 8th Dist. Cuyahoga No. 92983, 2009-Ohio-6313.

         {¶5} Following this court's 2009 decision, the union returned to the arbitrator with a request for a hearing on the back pay award. The parties agreed to submit briefs in lieu of an evidentiary hearing on back pay amounts, and the arbitrator agreed to accept the briefs for consideration. In May 2010, the union filed its brief on damages to the arbitrator, and the city filed a brief in opposition. In its opposition, the city challenged the arbitrator's jurisdiction to issue a supplemental award on damages in light of the trial court's order of February 2009 confirming the arbitrator's initial award of "reasonable and demonstrable lost back pay."

         {¶6} On March 27, 2013, approximately three years after Local 1099 filed its brief on damages, the arbitrator issued his decision, finding he lacked jurisdiction to issue an additional award. In doing so, the arbitrator determined he was rendered "functus officio" following issuance and confirmation of the initial award and stated as follows:

As the confirmed award is final and thus unalterable, and the arbitrator functus officio, disputes as to whether remedies required under the award have been met are necessarily submitted to litigation if they cannot be grieved under the agreement. In any case, litigation of the present matter seems likely, irrespective of any additional remedy award issued by this arbitrator.

         {¶7} On June 28, 2013, the union filed with the trial court a motion to show cause or alternative post-judgment motion to determine reasonable and demonstrable lost back pay. In its motion, Local 1099 requested the trial court issue an order requiring the city to show cause why it should not be found in contempt for refusing to pay "reasonable and demonstrable" back pay. Alternatively, the union requested the trial court, pursuant to Civ.R. 69, issue a post-judgment order setting the amount of "reasonable and demonstrable" back pay in the amount of $309, 797.86.[2] The city responded, denying it was violating the arbitrator's decision, and it moved to dismiss the union's complaint for lack of jurisdiction.

         {¶8} Three additional years later, on December 16, 2016, the trial court issued an order stating that it "reviewed the Laborer's Local 1099's motion to show cause or alternative post-judgment motion to determine reasonable and demonstrable lost back pay, briefs in opposition, various motions filed by both parties in furtherance of their arguments, exhibits, affidavits, and all pleadings, " and it awarded the union $309, 797.86 in "reasonable and demonstrable lost back pay" as well as prejudgment interest from May 23, 2006.

         Assignments of Error

         {¶9} The city now appeals the trial court's 2016 decision, assigning two errors for our review:

I. The trial court erred in awarding damages as it lacked jurisdiction to modify the underlying arbitration award.
II. The trial court abused its discretion in awarding $309, 797.86 in "reasonable and demonstrable lost back pay" as damages.

         Law and Analysis

          {¶10} In its first assignment of error, the city contends that the trial court lacked jurisdiction to modify the arbitrator's award of "reasonable and demonstrable lost back pay and therefore the court erred in awarding damages not stated in the arbitrator's initial award. In support, the city cites to R.C. Chapter 2711 and argues that the trial court's awarded sum of $309, 797.86 was an improper modification of the arbitrator's award. The city further argues that the trial court abused its discretion in awarding the back pay because (1) the union cannot show that the DCA performed services that have been "traditionally and exclusively performed by members of Local 1099, and (2) the union cannot establish that its members lost wages and overtime opportunities because of the work performed by DCA.

         {¶11} In response, the union contends that the trial court had jurisdiction to monetize the arbitrator's award of "reasonable and demonstrable" back pay as part of its February 2009 order confirming the arbitrator's award. The union provides that the trial court's general jurisdiction under Civ.R. 69 to entertain execution proceedings supports its position. The ...


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