[Cite as State ex rel. Tempesta v. Warren, 128 Ohio St.3d 463, 2011-Ohio-1525.]




                THE STATE EX REL. TEMPESTA v. CITY OF WARREN.
                      [Cite as State ex rel. Tempesta v. Warren,
                        128 Ohio St.3d 463, 2011-Ohio-1525.]
Mandamus — Classified employee — R.C. 124.327 — Right to reinstatement
        following layoff — Collective-bargaining agreement — Back pay — Writ
        granted in part and denied in part.
   (No. 2010-1150 — Submitted February 15, 2011 — Decided April 6, 2011.)
                                      IN MANDAMUS.
                                  __________________
        Per Curiam.
        {¶ 1} This is an action for a writ of mandamus to compel respondent,
city of Warren, Ohio, to reinstate relator, Frank M. Tempesta, to the city’s
Operations Department in the position of operations superintendent, and to award
him back pay. Because Tempesta has shown that he is entitled to the position, we
grant the writ and order the city to appoint him to the operations superintendent
position. We deny the request for an award of back pay because Tempesta has
not established the amount due with certainty.
                                           Facts
        {¶ 2} Tempesta was a classified employee for the city of Warren. His
job classification was “Director of Service Operations,” within the “Director of
Service Operations, Operations Superintendent, and Parks and Streets Supervisor”
classification series. The classified positions in this series are listed from the
highest-ranking classification to the lowest-ranking classification, and Tempesta
was in the highest-ranking classification as the director of service operations.
        {¶ 3} In early June 2009, because the city was experiencing financial
difficulties, city officials notified the Warren Municipal Civil Service
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Commission of the need to lay off city employees due to a lack of funds. There
were only three supervisory employees in the city’s Operations Department –
Director of Service Operations Tempesta, Operations Superintendent David
Mazzochi, and Parks and Streets Supervisor Leann O’Brien.            Each of these
employees was a full-time, permanent, classified employee of the city in June
2009; of the three, Tempesta had the least amount of continuous service with the
city. By letter dated June 25, 2009, the city’s director of public service and safety
notified the civil service commission that Tempesta would be laid off because of
the lack of funds.
       {¶ 4} The city notified Tempesta on July 8, 2009, that he would be laid
off from his employment with Warren, effective July 26, 2009, for lack of funds
and advised him that he had the right to appeal the layoff to the municipal civil
service commission as well as the “right to reinstatement for one (1) year from the
effective date of this layoff.” Consistent with the city’s notice, Tempesta was laid
off effective July 26, 2009. Tempesta appealed the civil service commission’s
verification of retention points for the supervisory employees in the Operations
Department to the Trumbull County Court of Common Pleas, but he did not
institute any other appeals in the common pleas court.
       {¶ 5} In November 2008, the city had temporarily transferred O’Brien
from her position as parks and streets supervisor in the city’s Operations
Department to the position of computer programmer in the city’s data-processing
department. In September 2009, the city reassigned O’Brien to the position of
urban design and grants coordinator in the city’s community-development
department. At the same time, the city advised her that if and when funds became
available, she would be reassigned to her position as parks and streets supervisor
in the Operations Department.
       {¶ 6} For 2010, the city was a party to a collective-bargaining agreement
with the American Federation of State County and Municipal Employees




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(“AFSCME”) Local 2501 and AFSCME Ohio Council 8, AFL-CIO. Neither
Tempesta nor the position of director of service operations that he held at the time
of his layoff was covered by the agreement.            The other positions in his
classification series — operations superintendent and parks and streets supervisor
— were covered by the agreement.
       {¶ 7} Article 19 of the collective-bargaining agreement outlines a
grievance procedure concluding in arbitration, and Article 21 addresses
promotions. Article 21 provides that the senior bargaining-unit member will be
promoted when a job opening in the bargaining unit is posted:
       {¶ 8} “The City agrees to post any job openings, on all Union bulletin
boards, occurring within the bargaining unit for a period of ten (10) working days
after the City determines there is a vacancy. The qualified senior bargaining unit
member shall be promoted. If no qualified bargaining unit member bids, the
Director of Public Service and Safety may fill the position at his/her discretion.”
       {¶ 9} Neither Article 21 nor any other provision in the collective-
bargaining agreement specifically negated the statutory rights of a civil service
employee to reinstatement following layoff.
       {¶ 10} Effective July 1, 2010, the position of operations superintendent
became vacant because Mazzochi retired. On June 10, 2010, the city posted a
notice of the upcoming job opening. Around mid-June, Tempesta asked to fill the
operations-superintendent position. But based on its interpretation of Article 21
of the collective-bargaining agreement, the city appointed Pat Calvey to the
position effective July 1, 2010. Calvey has served in that position since the
appointment.
       {¶ 11} On July 1, 2010, Tempesta filed this action for a writ of mandamus
to compel Warren to reinstate him to the position of operations superintendent.
Tempesta also requested damages, which he later clarified to mean back pay.
Following an unsuccessful attempt at mediation, the city filed an answer, and we



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granted an alternative writ. State ex rel. Tempesta v. Warren, 126 Ohio St.3d
1614, 2010-Ohio-5101, 935 N.E.2d 853. The parties have submitted evidence
and briefs, and Ohio Council 8, AFSCME, AFL-CIO has submitted an amicus
curiae brief in support of the city.
          {¶ 12} This cause is now before this court for our consideration of the
merits.
                                   Legal Analysis
                                       Mandamus
          {¶ 13} To be entitled to the writ, Tempesta must establish a clear legal
right to be appointed to the position of operations superintendent in the Warren
Operations Department, a corresponding clear legal duty on the part of the city to
appoint him, and the lack of an adequate remedy in the ordinary course of law.
See State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671,
931 N.E.2d 110, ¶ 7.
                             Legal Right and Legal Duty
          {¶ 14} Under R.C. 124.327(B), an employee who is laid off retains
reinstatement rights for one year following the date of layoff. “During this one-
year period, in any layoff jurisdiction in which an appointing authority has an
employee on a layoff list, the appointing authority shall not hire or promote
anyone into a position within that classification until all laid-off persons on a
layoff list for that classification who are qualified to perform the duties of the
position are reinstated or decline the position when it is offered.”         R.C.
124.327(B).
          {¶ 15} Within a year after Warren laid off Tempesta as the director of
service operations of its Operations Department, the city had a vacancy for the
position of operations superintendent in the same classification series as
Tempesta’s former position in its Operations Department, but it hired someone
else without first offering the position to Tempesta.




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        {¶ 16} The city and the union argue that because the collective-bargaining
agreement justified the city’s promotion of bargaining-unit member Calvey to the
position of operations superintendent, the agreement preempted Tempesta’s right
to the position under the reinstatement provisions under R.C. 124.327.
        {¶ 17} “In order to negate statutory rights of public employees, a
collective bargaining agreement must use language with such specificity as to
explicitly demonstrate that the intent of the parties was to preempt statutory
rights.” State ex rel. Ohio Assn. of Pub. School Emps./AFSCME, Local 4, AFL-
CIO v. Batavia Local School Dist. Bd. of Edn. (2000), 89 Ohio St.3d 191, 729
N.E.2d 743, syllabus; State ex rel. Couch v. Trimble Local School Dist. Bd. of
Edn., 120 Ohio St.3d 75, 2008-Ohio-4910, 896 N.E.2d 690, ¶ 23. Nothing in
Article 21 of the collective-bargaining agreement, which contains general
provisions concerning promotions, or any other provision of the agreement,
specifically negates the statutory rights of bargaining-unit employees to
reinstatement following layoff, much less the statutory rights of city employees
like Tempesta who were not members of the bargaining unit at the time they
were laid off.       Therefore, as precedent requires, the collective-bargaining
agreement did not preempt Tempesta’s right to reinstatement in the Warren
Operations Department under R.C. 124.327.1
        {¶ 18} The city next argues that Tempesta’s statutory right to employment
in the operations-superintendent position is inferior to O’Brien’s right under the
same statute because O’Brien had more seniority in the “Director of Service
Operations, Operations Superintendent, and Parks and Streets Supervisor”
classification series than Tempesta.

1. R.C. 124.327(B) provides that “[f]or an exempt employee, as defined in section 124.152 of the
Revised Code, who has reinstatement rights into a bargaining unit classification, the exempt
employee’s recall jurisdiction shall be the counties in which the exempt employee indicates
willingness to accept reinstatement as determined by the applicable collective bargaining
agreement.” Because none of the parties argues that this provision is applicable to his mandamus
claim, we need not address it.




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       {¶ 19} The city’s argument lacks merit. Under R.C. 124.327(A), “[l]aid-
off employees shall be placed on layoff lists for each classification in the
classification series equal to or lower than the classification in which the
employee was employed at the time of layoff.” If O’Brien’s reassignment from
her position as parks and streets supervisor to a new position constituted a layoff
from her position as parks and streets supervisor in the Operations Department of
Warren, she would have been entitled to have been placed on the layoff list for
only the parks-and-streets-supervisor classification, because the other two
classifications in the series — director of service operations and operations
superintendent — were higher than her classification.        Conversely, because
Tempesta had been laid off from the highest classification in the series — director
of service operations — he was entitled to be placed on the layoff lists for all
three classifications, including operations superintendent. R.C. 124.327(A).
       {¶ 20} Therefore, Tempesta has established a clear legal right to be
employed in the position of operations superintendent with Warren and a clear
legal duty on the part of the city to so employ him.
            Lack of Adequate Remedy in the Ordinary Course of Law
       {¶ 21} “Mandamus will not issue if there is a plain and adequate remedy
in the ordinary course of law.” State ex rel. McClaran v. Ontario, 119 Ohio St.3d
105, 2008-Ohio-3867, 892 N.E.2d 440, ¶ 15; R.C. 2731.05.
       {¶ 22} The city claims that Tempesta is not entitled to the requested writ
of mandamus because he has or had an adequate remedy in the ordinary course of
law by way of the grievance and arbitration procedure in the collective-bargaining
agreement. “A grievance and arbitration procedure in a collective bargaining
agreement generally provides an adequate legal remedy, which precludes
extraordinary relief in mandamus, when violations of the agreement are alleged
by a person who is a member of the bargaining unit covered by the agreement.”




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State ex rel. Walker v. Lancaster City School Dist. Bd. of Edn. (1997), 79 Ohio
St.3d 216, 218, 680 N.E.2d 993.
        {¶ 23} Tempesta does not have an adequate legal remedy by way of the
grievance and arbitration procedure in the collective-bargaining agreement
because his claim is based on statute rather than the agreement and he was not a
member of the bargaining unit covered by the agreement.
        {¶ 24} Moreover, although R.C. 124.34 authorizes an appeal to the
municipal civil service commission from certain adverse employment decisions,
the decisions that can be appealed do not include the wrongful failure to recall a
laid-off employee. See R.C. 124.34(B).
        {¶ 25} Therefore, Tempesta has established that he lacks an adequate
remedy in the ordinary course of law.
                                    Back Pay
        {¶ 26} Tempesta also requests an award of back pay. “A wrongfully
excluded public employee may obtain back pay and related benefits in a
mandamus action following reinstatement or, in some cases, may obtain
reinstatement and back pay and related benefits in the same mandamus action.”
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (2001), 93 Ohio
St.3d 558, 563, 757 N.E.2d 339. Here, Tempesta requests an award of back pay
in the same mandamus case in which he seeks reinstatement to employment with
the city.
        {¶ 27} To be entitled to recover compensation for the period of wrongful
exclusion from employment, however, Tempesta is required to establish the
amount of back pay “with certainty.” Monaghan v. Richley (1972), 32 Ohio St.2d
190, 61 O.O.2d 425, 291 N.E.2d 462, syllabus; State ex rel. Stacy v. Batavia
Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d
298, ¶ 28. The term “with certainty” generally refers to “whether a particular
amount has been precisely determined as to its value in dollars and cents” and at



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times “also refer[s] to the quality of proof, in order for an employee to
demonstrate that he has a clear legal right to the relief for which he prays.” State
ex rel. Hamlin v. Collins (1984), 9 Ohio St.3d 117, 120, 9 OBR 342, 459 N.E.2d
520. Tempesta has introduced no evidence here that would satisfy the requisite
standard of proof.
       {¶ 28} Therefore, Tempesta is not entitled to an award of back pay.
                                    Conclusion
       {¶ 29} Based on the foregoing, Tempesta has established his right to a
writ of mandamus to compel the city of Warren to appoint him to the position of
operations superintendent in the city’s Operations Department. Therefore, we
grant the writ. We deny the writ insofar as Tempesta seeks an award of back pay
for which he has failed to satisfy his burden of proof.
                                                            Judgment accordingly.
       O’DONNELL and CUPP, JJ., concur.
       PFEIFER and LUNDBERG STRATTON, JJ., concur in granting the writ but
would also award back pay to relator.
       O’CONNOR, C.J., and LANZINGER and MCGEE BROWN, JJ., dissent.
                               __________________
       LANZINGER, J., dissenting.
       {¶ 30} I respectfully dissent and would deny the writ of mandamus
because relator, Frank M. Tempesta, has not established either a clear legal right
to appointment to the position of operations superintendent in the city of Warren’s
Operations Department or the city’s clear duty to appoint him to that position.
State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931
N.E.2d 110, ¶ 7.
       {¶ 31} In failing to focus on the collective bargaining agreement that the
city has entered into with Ohio Council 8, American Federation of State, County
and Municipal Employees, AFL-CIO (“the union”), I believe the majority has




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gone astray.   It is well settled that when a collective bargaining agreement
contains language related to the wages, hours, and terms and conditions of
employment that is sufficiently specific to explicitly demonstrate that the intent of
the parties was to preempt statutory rights, the contract language controls over the
language of the conflicting statute. E.g., State ex rel. Ohio Assn. of Pub. School
Emps./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn.
(2000), 89 Ohio St.3d 191, 729 N.E.2d 743, syllabus.
       {¶ 32} R.C. 4117.10(A) provides: “An agreement between a public
employer and an exclusive representative entered into pursuant to this chapter
governs the wages, hours, and terms and conditions of public employment
covered by the agreement. * * * Where no agreement exists or where an
agreement makes no specification about a matter, the public employer and public
employees are subject to all applicable state or local laws or ordinances pertaining
to the wages, hours, and terms and conditions of employment for public
employees.”
       {¶ 33} Pursuant to R.C. 4117.08, matters affecting promotions are
appropriate subjects of collective bargaining between a municipal corporation and
an exclusive representative employee organization. See DeVennish v. Columbus
(1991), 57 Ohio St.3d 163, 566 N.E.2d 668, paragraph two of the syllabus.
Article 21 of the collective bargaining agreement between the city and the union
addresses promotions: “The City agrees to post any job openings, on all Union
bulletin boards, occurring within the bargaining unit for a period of ten (10)
working days after the City determines there is a vacancy. The qualified senior
bargaining unit member shall be promoted.          If no qualified bargaining unit
member bids, the Director of Public Service and Safety may fill the position at
his/her discretion.” (Emphasis added.)
       {¶ 34} The collective bargaining agreement in this case thus has made a
“specification about a matter,” that is, about promotions. Article 21 explicitly



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controlled how vacancies within the bargaining unit, which includes the position
of operations superintendent, were to be filled. If a bargaining unit member bid
for a vacant position, that member was to be promoted. Tempesta was never a
member of the bargaining unit. He had no legal right to be placed into a vacant
position unit for which a qualified bargaining unit member had applied.
Nevertheless, Tempesta asserts that the city was legally obligated to appoint him
because of R.C. 124.327, which requires the reinstatement of classified employees
laid off within the previous year before a promotion or new hire is made in the
relevant classification series.
        {¶ 35} The position of operations superintendent became vacant upon
David Mazzochi’s retirement on July 1, 2010. On June 10, the city posted a
notice of the upcoming job opening and eventually appointed bargaining unit
member Pat Calvey to the position, effective July 1, 2010. Tempesta argues that
because on July 1 he was in layoff status with the city, he was entitled to be
reinstated and appointed as operations superintendent pursuant to R.C. 124.327,
because the position of operations superintendent was in the same classification
series as his former position.
        {¶ 36} His proposition of law rests on the statement that “[i]n order to
negate statutory rights of public employees, a collective bargaining agreement
must use language with such specificity as to explicitly demonstrate that the intent
of the parties was to preempt statutory rights.” Ohio Assn. of Pub. School Emps.,
89 Ohio St.3d 191, 729 N.E.2d 743, at syllabus. He argues that Article 21 of the
collective bargaining agreement between the city and the union does not
specifically negate the statutory rights of bargaining unit employees to
reinstatement following layoff, much less the statutory rights of nonunion city
employees like him.
        {¶ 37} But the case on which he relies is distinguishable. In Ohio Assn. of
Pub. School Emps., this court held that a school board did not have authority




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under a collective bargaining agreement to abolish bus driver positions and then
transfer the obligation to provide transportation to a private company. Id. at 195.
Under those circumstances, the drivers, members of the union, retained their
statutory protections under R.C. 3319.081, the statute that governs contracts for
nonteaching school-district employees. R.C. 124.327 was not at issue. Unlike
Tempesta’s situation, the apparent conflict lay between the contractual and
statutory rights of the members of the collective bargaining unit. Tempesta is not
a member of the bargaining unit and the union itself has not filed any grievance
under the collective bargaining agreement. In fact, here the union has filed a brief
as amicus for the respondent city.
       {¶ 38} I would hold that the city, in following its collective bargaining
agreement, appropriately promoted Pat Calvey to the position of operations
superintendent. Without establishing his own legal right to the appointment or a
legal duty to appoint on the part of the city of Warren, relator, Frank Tempesta,
has failed to show that he is entitled to a writ of mandamus.
       O’CONNOR, C.J., and MCGEE BROWN, J., concur in the foregoing opinion.
                              __________________
       Guarnieri & Secrest, P.L.L., and Michael D. Rossi, for relator.
       Gregory V. Hicks, Warren Law Director, and James R. Ries, Deputy Law
Director, for respondent.
       Bethany E. Sanders, Associate General Counsel, urging denial of the writ
for amicus curiae, Ohio Council 8, AFSCME, AFL-CIO.
                             ____________________




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