[Cite as Sheet Metal Workers Local Union #33 v. Sutton, 2011-Ohio-3809.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

SHEET METAL WORKERS LOCAL                                 JUDGES:
UNION NO. 33                                              Hon. W. Scott Gwin, P.J.
                                                          Hon. William B. Hoffman, J.
        Plaintiff-Appellee                                Hon. Julie A. Edwards, J.

-vs-                                                      Case No. 2010CA00323

THOMAS F. SUTTON, JR., ET AL.
                                                          OPINION
        Defendants-Appellants




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


JUDGMENT:                                             Affirmed in part; Reversed and Remanded
                                                      in part

DATE OF JUDGMENT ENTRY:                               August 1, 2011


APPEARANCES:


For Plaintiff-Appellee                                For Defendants-Appellants


AMY L. ZAWACKI                                        ROBERT J. TSCHOLL
Allotta, Farley & Widman Co., LPA                     JENNIFER L. ARNOLD
2222 Centennial Road                                  220 Market Ave. South, Suite 1120
Toledo, Ohio 43617                                    Canton, Ohio 44702
Stark County, Case No. 2010CA00323                                                       2

Hoffman, J.


       {¶1}   Defendants-appellants Thomas F. Sutton, Jr., et al. appeal the October

22, 2010 Judgment Entry entered by the Stark County Court of Common Pleas, which

granted summary judgment in favor of plaintiff-appellee Sheet Metal Workers Local

Union No. 33. Appellants also appeal the April 9, 2010 Judgment Entry, which denied

their request for fees.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellee is a local trade union affiliate of an international labor union.

Appellants were voluntary members of Appellee, working as employees of Kiko Heating

& A/C. Kiko was a covered employer and signatory to a collective bargaining agreement

with Appellee.

       {¶3}   On June 19, 2009, Jerry Durieux, Appellee’s business representative,

contacted Appellant Thomas F. Sutton, Jr., who was the union steward for Kiko. Durieux

asked Appellant Sutton to arrange a meeting for all Kiko employees who were members

of Appellee. At the meeting, Durieux advised Kiko’s union member employees that Kiko

was three weeks behind on fringe benefit payments. Appellant and the other employees

agreed with Durieux’s decision to remove them from Kiko should the employer not pay

the fringe benefits by the following day. Following the meeting, Durieux provided Tim

Brown, owner of Kiko, notice if the fringe benefits were not paid, Appellee would remove

all of its members from Kiko. Kiko did not pay the delinquent fringe benefits. As a result,

Appellee exercised its right under the collective bargaining agreement and pulled its

members working for Kiko.
Stark County, Case No. 2010CA00323                                                     3


       {¶4}   Shortly after Appellee pulled its members from Kiko, Appellants returned

to work at Kiko for a non-bargained wage and fringe benefits package. On June 26,

2009, Appellee filed charges against Appellants, alleging violations of Article 17,

Sections 1(e), 1(f), and 1(m) of the Union’s Constitution. Appellants resigned from the

Union on June 30, 2009. Appellee sent Appellants notice of a “union” trial scheduled for

September 12, 2009. Appellants did not appear at the “union” trial. The Trial Committee

conducted the hearing and found Appellants in violation of Sections 1(e), 1(f), and 1(m)

of Article 17 of the Union’s Constitution. The Trial Committee fined Appellant Sutton a

total of $60,000; and fined the other Appellants a total of $45,000/each. Appellee’s

membership accepted the Trial Committee’s decision at a regular meeting held on

September 15, 2009. On September 21, 2009, Appellee notified Appellants, in writing,

via first class mail and certified mail, of the decision and of their appeal rights and

obligations. Appellants did not exercise their appeal rights.

       {¶5}   On December 1, 2009, Appellee filed five separate actions against each

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

disciplinary sanctions and to collect the disciplinary fines. Appellants filed individual

motions to dismiss. While the motions were pending, Appellants filed separate motions

to consolidate, which the trial court granted. The trial court treated the motions to

dismiss as motions for change of venue. The trial court ordered the consolidated cases

be transferred to Stark County. The Stark County Court of Common Pleas received the

transfer on February 11, 2010. Appellants filed an Answer as well as a motion for

attorney fees. Via Judgment Entry filed April 9, 2010, the trial court denied Appellants’

request for fees.
Stark County, Case No. 2010CA00323                                                    4


      {¶6}   After an unsuccessful attempt at mediation, Appellee filed a motion for

summary judgment. Appellants filed a memorandum in opposition. Via Judgment Entry

filed October 22, 2010, the trial court granted Appellee’s motion for summary judgment.

The trial court found Appellants were still active members of the Union when they

committed the offenses on June 23, 2009; therefore, Appellee had jurisdiction over

them. The trial court also found the fines imposed upon Appellants were not arbitrary or

unreasonable.

      {¶7}   It is from this judgment entry Appellants appeal, raising the following

assignments of error:

      {¶8}   “I. THE TRIAL COURT IMPROPERLY RESOLVED ISSUES OF FACT IN

THE MOVANT’S FAVOR.

      {¶9}   “II. THE TRIAL COURT IMPROPERLY DETERMINED THAT THE UNION

HAD JURISDICTION OVER THE EMPLOYEES.

      {¶10} “III. THE TRIAL COURT IMPROPERLY DETERMINED THAT THE FINE

IN THE MATTER WAS APPROPRIATE RATHER THAN ARBITRARY AND

UNREASONABLE.

      {¶11} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

REFUSED TO AWARD ATTORNEY FEES TO DEFENDANTS UPON THE CHANGE

OF VENUE UNDER OHIO CIVIL RULE 3.”

                        SUMMARY JUDGMENT STANDARD OF REVIEW

      {¶12} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
Stark County, Case No. 2010CA00323                                                      5

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶13} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶14} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be
Stark County, Case No. 2010CA00323                                                       6


denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

                                                I

       {¶15} In their first assignment of error, Appellants contend the trial court

improperly resolved issues of fact in Appellee’s favor. Specifically, Appellants take issue

with the trial court’s resolution of the question of what Jerry Durieux told Appellants

about whether there would be other work available after they were removed from Kiko.1

We find what Durieux told or did not tell Appellants regarding other available work is not

a material fact as it relates to Appellee’s decision finding Appellants violated the

contract2.

       {¶16} Generally, the provisions set forth in a union's constitution and bylaws,

which define punishable conduct and establish the procedures for internal trial and

appeal, constitute a contract between the union and its members. Natl. Labor Relations

Bd. v. Allis-Chalmers Mfg. Co. (1967), 388 U.S. 175, 180, 182, 87 S.Ct. 2001, 2008, 18

L.Ed.2d 1123, 1129. (Citation omitted).      Since federal law does not preclude the

imposition of disciplinary fines by unions upon its members or the resort to judicial

enforcement of such fines, “[s]tate law governs union lawsuits to collect disciplinary



1
  In the trial court, Appellants alleged Duriex told them Appellee has no work for them,
and that they should continue to pay Union dues and find work wherever they could.
2
  The dispute of this fact is arguably relevant to Appellants’ third assignment of error.
Stark County, Case No. 2010CA00323                                                   7

fines.” Local Lodge 1297 v. Allen (1986), 22 Ohio St.3d 228, 232, 22 OBR 407, 410,

490 N.E.2d 865, 869; Natl. Labor Relations Bd. v. Boeing Co. (1973), 412 U.S. 67, 74,

93 S.Ct. 1952, 1957, 36 L.Ed.2d 752, 757; Allis-Chalmers Mfg. Co., supra.

      {¶17} “Under Ohio law, unions and other unincorporated associations may sue

their voluntary members to collect debts and to enforce discipline.” Local Lodge 1297,

supra, 22 Ohio St.3d at 232, 22 OBR at 410, 490 N.E.2d at 869. A disciplinary fine

imposed by a union upon its member is a binding contractual obligation that constitutes

a debt. Id.; 48 American Jurisprudence 2d (1979) 308, Labor and Labor Relations,

Section 397; Annotation (1967), 13 A.L.R.3d 1004.

      {¶18} 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. State ex rel. Ohio High School

Athletic Assn. v. Judges (1962), 173 Ohio St. 239, 19 O.O.2d 52, 181 N.E.2d 261,

paragraph three of the syllabus; Lough v. Varsity Bowl, Inc. (1968), 16 Ohio St.2d 153,

45 O.O.2d 483, 243 N.E.2d 61, syllabus.

      {¶19} Appellants were sent notice of the September 12, 2009 trial committee

hearing. Appellants chose not to attend or send a representative on their behalf. We

find Appellants were afforded due process.

      {¶20} Appellants’ first assignment of error is overruled.

                                               II

      {¶21} In their second assignment of error, Appellants maintain the trial court

erred in finding Appellee had jurisdiction over them. We disagree.
Stark County, Case No. 2010CA00323                                                        8


       {¶22} Appellants argue Appellee’s jurisdiction over them ended when they

voluntarily resigned their memberships. In support of their position, Appellants rely upon

Local Union 673, Bhd. of Elec. Workers v. Markell (1989), 64 Ohio App.3d 217. The

Markell case involved a union member who ceased paying dues, but did not notify the

union he wished to resign his membership. After he was suspended for nonpayment,

but before he was dropped from the membership rolls, the member was observed

performing nonunion work and was charged for doing so. The member in Markell

contended he was not a member subject to discipline after he was suspended. The

Eleventh District Court of Appeals agreed, concluding Markell did not meet the union

constitution definition of “member”; therefore, could not be disciplined.

       {¶23} We find Markell to be factually distinguishable. Although Appellants in the

instant action were fined after their resignations, they were charged for violations of the

Union Constitution committed prior to their resigning. The crucial inquiry with regard to

membership status is not whether the person was a member of the union at the time the

fines were imposed or enforced, but rather, whether the person was a member of the

union on the date of the alleged union violation. Booster Lodge No. 405, Int'l Ass'n of

Machinists and Aerospace Workers v. N.L.R.B. (D.C.Cir.1972), 459 F.2d 1143 affirmed

412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764 (1973). Furthermore, contrary to Appellants’

position, we find Appellee did not institute the disciplinary action nor impose the fines as

a means of restricting Appellants’ ability to resign. Pattern Makers' League of North

America, AFL-CIO v. N.L.R.B. (1985), 473 U.S. 95, 105 S.Ct. 3064.

       {¶24} Based upon the foregoing, we find the trial court did not err in determining

Appellee had jurisdiction over Appellants.
Stark County, Case No. 2010CA00323                                                      9


      {¶25} Appellants’ second assignment of error is overruled.

                                               III

      {¶26} In their third assignment of error, Appellants submit the trial court erred in

finding the fines imposed upon them by Appellee were not arbitrary or unreasonable.

      {¶27} “The severity of the fine alone or its punitive effect … 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.” International Bhd. of Elec.v. Smith (1992), 76 Ohio App.3d 652, 662.

“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.” Id. (Citations

omitted).

      {¶28} Appellee submitted a second affidavit of Jerry Durieux in support of its

position the fines were neither arbitrary nor unreasonable. Durieux averred the fines

imposed were appropriate based upon the economic loss suffered by Appellee as well

as the resulting harm and damage to the Union as a whole. In opposing Appellee’s

motion for summary judgment, Appellants submitted their own affidavits in which they

each averred the fine imposed was greater than his annual income. Apellant’s further

stated Durieux told them he did not have work available for the men, and instructed

them to find work where they could.
Stark County, Case No. 2010CA00323                                                    10


       {¶29} We find the averments in Appellants’ affidavits are arguably material in

terms of mitigation, and in explanation for their actions.

       {¶30} Appellants’ third assignment of error is sustained.

                                                 IV

       {¶31} In their final assignment of error, Appellants argue the trial court abused

its discretion in refusing to award attorney fees pursuant to Civ. R. 3.

       {¶32} A trial court’s decision as to the appropriateness of an award of attorney

fees will not be reversed absent an abuse of discretion.

       {¶33} Civ. R. 3(C) provides, in pertinent part:

       {¶34} “(2) When an action is transferred to a county which is proper, the court

may assess costs, including reasonable attorney fees, to the time of transfer against the

party who commenced the action in a county other than stated to be proper in division

(B) of this rule.”

       {¶35} Appellee originally filed the actions against Appellants in Cuyahoga

County because the main office of the Union is located in Parma, Cuyahoga County,

Ohio, and because Appellants participated in business in Cuyahoga County as a result

of their voluntary Union membership.

       {¶36} We find Appellee had valid reasons to believe Cuyahoga County was the

appropriate venue. We further find Appellee did not “deliberately or heedlessly” initiate

the actions in Cuyahoga County. See, Premier Assoc., Ltd. v. Loper (2002), 149 Ohio

App.3d 660 (Citation omitted).

       {¶37} Appellants’ fourth assignment of error is overruled.
Stark County, Case No. 2010CA00323                                                 11


      {¶38} The judgment of the Stark County Court of Common Pleas is affirmed in

part, and reversed in part. The matter is remanded for hearing in accordance with this

Opinion and the law .

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00323                                               12


             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. 2010CA00323


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed in part and reversed in part. The matter is

remanded for hearing in accordance with this Opinion and the law.     Costs divided

equally.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
