[Cite as Sheet Metal Workers Local Union No. 33 v. Sutton, 2012-Ohio-3549.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




SHEET METAL WORKERS LOCAL                           :       JUDGES:
UNION NO. 33                                        :       Hon. Patricia A. Delaney, P.J.
                                                    :       Hon. William B. Hoffman, J.
        Plaintiff-Appellee                          :       Hon. Sheila G. Farmer, J.
                                                    :
-vs-                                                :
                                                    :       Case No. 2011CA00262
THOMAS F. SUTTON, JR., ET AL.                       :
                                                    :
        Defendants-Appellants                       :       OPINION




CHARACTER OF PROCEEDING:                                    Appeal from the Court of Common
                                                            Pleas, Case No. 2010CV00567



JUDGMENT:                                                   Affirmed in Part; Judgment Entered




DATE OF JUDGMENT:                                           August 6, 2012




APPEARANCES:

For Plaintiff-Appellee                                      For Defendants-Appellants

AMY L. ZAWACKI                                              ROBERT J. TSCHOLL
2222 Centennial Road                                        JENNIFER L. ARNOLD
Toledo, OH 43617                                            400 South Main Street
                                                            North Canton, OH 44720
Stark County, Case No. 2011CA00262                                                      2

Farmer, J.

          {¶1}   Appellants, Thomas Sutton, Jr., Jerry Anderson, Randy Brewer, Craig

Howell, and Joel Jagger, were employees of Kiko Heating & A/C and were members of

a union, Sheet Metal Workers Local Union No. 33, appellee herein. Appellant Sutton

was the union steward.

          {¶2}   On June 23, 2009, because Kiko was behind in making fringe benefit

payments to appellee, appellee pulled appellants from working for Kiko. Thereafter,

appellants returned to work for Kiko for non-bargained wages and fringe benefits.

          {¶3}   On June 26, 2009, appellee filed charges against appellants for violating

Article 17 of the Union's Constitution. Appellants resigned from the union on June 30,

2009. A "union" trial was held on September 12, 2009. Appellants did not appear. The

committee found appellants had violated three sections of Article 17 of the Union's

Constitution, and imposed fines of $20,000.00 (times 3 for a total of $60,000.00) against

appellant Sutton and $15,000.00 (times 3 for a total of $45,000.00) against each of the

remaining appellants. Appellee's membership accepted the committee's decision at a

regular meeting held on September 15, 2009. Appellants did not exercise their appeal

rights.

          {¶4}   On December 1, 2009, appellee filed five separate actions against each

appellant in the Court of Common Pleas of Cuyahoga County, seeking to uphold the

sanctions and collect the fines. The cases were consolidated and transferred to the

Court of Common Pleas of Stark County. On September 16, 2010, appellee filed a

motion for summary judgment. By judgment entry filed October 22, 2010, the trial court

granted said motion and found the fines imposed were not arbitrary or unreasonable.
Stark County, Case No. 2011CA00262                                                     3


      {¶5}   Appellants appealed, and this court affirmed the trial court's decision, but

reversed on the arbitrary and reasonable nature of the fines. Sheet Metal Workers

Local Union No. 33 v. Sutton, Stark App. No. 2010CA00323, 2011-Ohio-3809.

      {¶6}   Upon remand, the trial court conducted a hearing on November 10, 2011.

By judgment entry filed November 15, 2011, the trial court found appellants violated two

sections of Article 17 of the Union's Constitution, and the fines imposed by appellee for

each violation were not arbitrary or unreasonable.      The total fine imposed against

appellant Sutton was $40,000.00 and the total fine imposed against each of the

remaining appellants was $30,000.00.

      {¶7}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶8}   "THE TRIAL COURT DID NOT CORRECTLY APPLY THE SMITH

FACTORS AS THE FINE IS ARBITRARY AND UNREASONABLE."

                                            I

      {¶9}   Appellants claim the trial court erred in determining the fines as the trial

court did not properly apply the factors enumerated in International Brotherhood of

Electrical Workers v. Smith (1992), 76 Ohio App.3d 652. We agree in part.

      {¶10} The Smith court stated the following at 661 and 662, respectively:

      {¶11} "Ohio courts will not review the actions and decisions of a union in

disciplining its members in the absence of mistake, fraud, collusion or arbitrariness,

where the union has afforded the member due process.***In this regard, a complaint
Stark County, Case No. 2011CA00262                                                       4


that the penalty imposed is too harsh does not amount to an allegation of

arbitrariness.***

       {¶12} "Nevertheless, although Ohio courts have not addressed the issue, it is

universally recognized by courts of other jurisdictions that, in a suit brought by the

union, the court will make a determination as to whether the fine was arbitrarily imposed

and unreasonable in amount before enforcing it, even where the member has failed to

exhaust internal union remedies. In such case, upon determination that the fine is both

arbitrary and unreasonable, the court will reduce it. The severity of the fine alone or its

punitive effect, however, is not tantamount to arbitrariness or unreasonableness since

the levying of a fine is not merely the collection of damages but relates to the power of a

labor organization to promote solidarity among its members.           Among the factors

considered by the courts in making a determination as to whether the fine is arbitrary

and unreasonable are: (1) methods and formulas used for calculation, (2) the member's

conduct for which the fine was imposed, (3) income of the member, (4) amount of fine,

(5) resulting harm or damage to the union or its other members, (6) nature of offenses

being punished, (7) manner and extent to which the member benefited or profited, and

(8) the current economic conditions.***" (Citations omitted.)

       {¶13} Our review is limited to whether the evidence presented substantiates the

trial court's conclusions. On review for manifest weight, the standard in a civil case is

identical to the standard in a criminal case: a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must
Stark County, Case No. 2011CA00262                                                        5

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52; Eastley v. Volkman,

____ Ohio St.3d ____, 2012-Ohio-2179.

       {¶14} In its judgment entry filed November 15, 2011, the trial court concluded

the following:

       {¶15} "After considering the factors set forth in Smith and after evaluating the

credibility of the witnesses, the Court found that there was sufficient evidence

demonstrating that Sections, 1(e) and 1(m) of Article 17 of the Union's Constitution were

violated by the Defendants.     The Court found, however, that there was insufficient

evidence to demonstrate a violation of Section 1(f) of the Union's Constitution.

       {¶16} "The Court further found that the fines imposed were not arbitrary or

unreasonable and that there was justification regarding the $5,000.00 differential in the

fines imposed between Defendant Thomas Sutton and the other Defendants in this

matter.

       {¶17} "Therefore, the Court finds a $15,000.00 fine shall be imposed for each

violation of the Union's Constitution, i.e. Sections 1(e) and 1(m), against Defendant

Jerry Anderson, Defendant Randy Brewer, Defendant Craig Howell and Defendant Joel

Jagger to the end that each individual Defendant is liable to the Plaintiff in the amount of

$30,000.00.

       {¶18} "The Court further fines that a $20,000.00 fine shall be imposed for each

violation of the Union's constitution, i.e. Sections 1(e) and 1(m), against Defendant

Thomas Sutton to the end that Defendant Sutton is liable to the Plaintiff in the amount of

$40,000.00."
Stark County, Case No. 2011CA00262                                                       6

      {¶19} Using the template set forth in Smith, we find there was no specific

method or formula used to determine the fines in the case sub judice. Presented to the

trial court were the testimonies of Gerald Durieux and Brad Klausner, appellee's

business representatives. Mr. Klausner was on the union's executive board and was on

the trial committee when the violations and fines were determined against appellants.

T. at 97-98. He testified the fines imposed were "typical" of previous decisions and the

committee attempted to be consistent. T. at 101, 118. In support, Mr. Klausner pointed

to three other cases wherein union members in violation of the Union Constitution were

fined $15,000.00 per violation. T. at 102-103, 112-113. One of the cases involved

union members opening their own non-union competing business. T. at 42, 102, 112.

      {¶20} On scale of 1 to 10, Mr. Klausner characterized the seriousness of

appellants' actions as a 10. T. at 109. The rationale used to justify the fines was that

appellants' actions "ruins the market share" and could cause a "ripple effect." T. at 104-

106. Mr. Klausner explained "if, you know, we weren't to do anything about these

violations, then more people would probably, you know, do that or go against what the

rules are, so we're just trying to uphold the rules***." T. at 106. The fines are used as

an example of what could happen when one violates the union contract. T. at 106-107.

      {¶21} The record is devoid of the actual monetary damage to appellee and the

amount of monetary gain to appellants. T. at 117-118. Mr. Klausner admitted "I don't

have a formula that we use." T. at 123. No evidence was presented as to how long

appellants worked for Kiko; however, they made approximately $23.00 to $25.00 per

hour. T. at 127. Appellants' failure to appear at the "union" trial and attempt to mitigate

their fines can only be faulted against themselves.
Stark County, Case No. 2011CA00262                                                        7


        {¶22} The trial court found appellants violated Sections 1(e) and 1(m) of Article

17 (Misconduct and Penalties) of the Union's Constitution which state the following:

        {¶23} "SEC. 1(e). Violating the established union collective bargaining

agreements and rules and regulations of any local union relating to rates of pay, rules

and working conditions.

        {¶24} "SEC. 1(m). Engaging in any conduct which is detrimental to the best

interests of this Association or any subordinate unit thereof or which will bring said

unions into disrepute."

        {¶25} In determining the fines levied against appellants, the trial court appears to

have found two separate acts in violation of the union contract. However, the testimony

establishes appellants committed only one act in violation of the contract: being rehired

by Kiko as non-union employees. Sec. 1(m) of Article 17 is in effect the consequence of

a Sec. 1(e) violation.

        {¶26} Based upon the record, we find a $15,000.00 fine for committing a

violation was appropriate for appellants Brewer, Howell, Jagger, and Anderson, but it

was error to multiple the fine by two.

        {¶27} As for appellant Sutton, it is clear from the testimony that he was the union

steward and therefore his act was in fact more egregious than the other appellants. We

find no error in fining appellant Sutton $20,000.00 for a violation. However, as with the

other appellants, there was a sole act in violating Sec. 1(e) of Article 17 that resulted in

the consequence of Sec. 1(m). Therefore, the fine should be limited to one $20,000.00

fine.

        {¶28} The sole assignment of error is granted in part.
Stark County, Case No. 2011CA00262                                                   8


      {¶29} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed in part. Pursuant to App.R. 12(B), we hereby enter judgment in favor of

appellee in the amount of $15,000.00 as against appellants Brewer, Howell, Jagger,

and Anderson each, and $20,000.00 as against appellant Sutton.

By Farmer, J.

Hoffman, J. concur and

Delaney, P.J. dissents.




                                           s / Sheila G. Farmer______________



                                           s / William B. Hoffman_____________



                                           _______________________________

                                                         JUDGES

SGF/sg 705
Stark County, Case No. 2011CA00262                                                     9

Delaney, P.J., dissenting

       {¶30} I respectfully dissent from the majority opinion for two reasons.

       {¶31} First, the opinion is premised upon a position not raised by appellants in

this appeal nor the prior appeal. Second, although the fine may appear harsh, the

conduct of appellants resulted in separate violations and distinct harm to appellee.

       {¶32} I would overrule the assignment of error and affirm the trial court’s

decision as it is supported by the record.




                                             ______________________________
                                             JUDGE PATRICIA A. DELANEY
[Cite as Sheet Metal Workers Local Union No. 33 v. Sutton, 2012-Ohio-3549.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



SHEET METAL WORKERS LOCAL                             :
UNION NO. 33                                          :
                                                      :
        Plaintiff-Appellee                            :
                                                      :
-vs-                                                  :           JUDGMENT ENTRY
                                                      :
THOMAS F. SUTTON, JR., ET AL.                         :
                                                      :
        Defendants-Appellants                         :           CASE NO. 2011CA00262



        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed in part.

Pursuant to App.R. 12(B), we enter judgment in favor of appellee in the amount of

$15,000.00 as against appellants Brewer, Howell, Jagger, and Anderson each, and

$20,000.00 as against appellant Sutton. Costs to appellants.




                                                      s / Sheila G. Farmer______________



                                                      s / William B. Hoffman_____________



                                                      _______________________________

                                                                        JUDGES
