[Cite as Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 2012-Ohio-3358.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97358



           MUNICIPAL CONSTRUCTION EQUIPMENT
               OPERATORS’ LABOR COUNCIL
                                                          PLAINTIFF-APPELLANT

                                                    vs.

                                CITY OF CLEVELAND
                                                          DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-627153


        BEFORE:          Celebrezze, J., Blackmon, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                          July 26, 2012
ATTORNEYS FOR APPELLANT

Patricia M. Ritzert
Stewart D. Roll
Climaco, Wilcox, Peca, Tarantino, Garofoli Co., L.P.A.
55 Public Square
Suite 1950
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Interim Director of Law
Richard F. Horvath
Chief Corporate Counsel
Joseph F. Scott
Chief Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114
FRANK D. CELEBREZZE, JR., J.:

      {¶1} Defendant-appellee, city of Cleveland, is a municipal corporation that has

adopted a city charter under the Home Rule Amendment of the Ohio Constitution, Article

XVIII, Section 7.

      {¶2} Plaintiff-appellant, Municipal Construction Equipment Operator’s Labor

Council (“the Union”), is the exclusive representative of the construction equipment

operators and master mechanics (“Union members”) employed by the city of Cleveland

(“Cleveland”). The Union members operate, maintain, and repair heavy construction

equipment for Cleveland. These employees are referred to as craft employees, building

trade employees, and operating engineers, and they are regular, full-time, hourly-rate

employees who are classified as Construction Equipment Operator A, Construction

Equipment Operator B, or Master Mechanic.

      {¶3} The Union and Cleveland operated under a collective bargaining agreement

from February 2005 until March 31, 2007. The parties were unable to come to an

agreement on a new collective bargaining agreement. Because the Union members are

building trade employees, when there is no collective bargaining agreement in place,

Cleveland Charter, Section 191 provides that Union members shall be compensated “in

accordance with the prevailing rates and salary or compensation for such services.”1


       The prevailing wage rate formula takes into account specific benefit costs to be used to
      1
       {¶4} Under the expired collective bargaining agreement, the Union members had

negotiated a wage rate less than the prevailing wage rate and received various nonwage

benefits pursuant to Cleveland Codified Ordinances. Once the collective bargaining

agreement expired, Cleveland stopped offering certain benefits provided by its codified

ordinances and began paying Union members in accordance with the prevailing wage rate

set forth in the Ohio Highway Heavy Agreement.

       {¶5} On June 14, 2007, the Union filed a complaint seeking declaratory judgment

and injunctive relief.     The complaint alleged that following the expiration of the

collective bargaining agreement, Cleveland paid Union members below the appropriate

prevailing wage rate. Based on Cleveland’s alleged failure to pay the correct prevailing

wage rate, the complaint sought declaratory and injunctive relief to prevent Cleveland

from terminating Union members from certain benefits provided under Cleveland

Codified Ordinances 171.07 (longevity pay), 171.28 (paid vacation leave), 171.30 (paid

holidays), 171.31 (paid sick leave), 171.32 (group term life insurance), 171.33

(hospitalization coverage), and 171.60 (dental insurance).

       {¶6} While the June 14, 2007 complaint was pending, the parties were unable to

agree on the prevailing wage rate the Union members should be paid when no controlling

collective bargaining agreement is in place. On November 30, 2007, the Union filed a


calculate the amount to be paid. See R.C. 4115.03(E)(3)(a-j). Benefits included in the formula
include life insurance, vacation and holiday pay, pension coverage, and medical insurance. This
calculation includes benefit compensation in the form of money rather than the employer providing
the additional benefits, such as those provided in the Cleveland Codified Ordinances.
writ of mandamus with the Ohio Supreme Court seeking to base the prevailing wage rate

on the Construction Employers Association Building Agreement (“building trades

prevailing wage rate”), while Cleveland contended that the prevailing wage rate should be

based on the Ohio Highway Heavy Agreement.               On February 20, 2008, the Ohio

Supreme Court agreed with the Union and determined that the Union members should be

paid at the building trades prevailing wage rate from April 11, 2007, and thereafter when

no collective bargaining agreement exists. State ex rel. Mun. Constr. Equip. Operators’

Labor Council v. Cleveland, 117 Ohio St.3d 1403, 2008-Ohio-565, 881 N.E.2d 272.

       {¶7} On May 15, 2008, the trial court reinstated this case to the active docket. On

May 30, 2008, the Union moved for summary judgment. On June 2, 2008, Cleveland

moved for summary judgment.          Before the trial court issued a ruling on the parties’

motions for summary judgment, the action was stayed on July 23, 2008, “pending final

ruling of the Ohio Supreme Court Case Number 2007-2227.”

       {¶8} On September 25, 2008, Cleveland notified the Union that because Cleveland

would begin its retroactive payment of the building trades prevailing wage rate, as

ordered by the Ohio Supreme Court, the Union members were no longer entitled to

benefits under the Cleveland Codified Ordinances, including 171.33, effective September

30, 2008.2




        On December 1, 2007, Cleveland reinstituted city-provided benefits while litigation was
       2


pending before the Ohio Supreme Court in Case Number 2007-2227.
       {¶9} On September 29, 2008, the Union filed a motion to reinstate the case to the

active docket and a motion for a temporary restraining order (“TRO”) pursuant to Civ.R.

65(A). The Union sought an order restraining and enjoining Cleveland from “taking any

action which would eliminate medical, hospitalization and health insurance coverage for

the Plaintiff’s members.” On October 8, 2008, the trial court simultaneously reinstated

the case to the active docket and granted the Union’s TRO. On agreement of the parties,

the trial court set a preliminary hearing for October 24, 2008. The preliminary hearing

was subsequently postponed until November 7, 2008, pending the Ohio State

Employment Relations Board (“SERB”) opinion in Mun. Constr. Equip. Operators’

Labor Council v. Cleveland, SERB No. 2008-005 (Oct. 31, 2008).3

       {¶10} On November 6, 2008, the parties agreed to stay pending litigation while

they attempted to conclude negotiations for a new collective bargaining agreement. The

agreement provided that the trial court would retain jurisdiction until a new collective

bargaining agreement was reached or an impasse was declared. Eventually, an impasse

was declared, and the trial court scheduled a preliminary hearing to be held on February

12, 2009. The hearing centered on the hospitalization benefits provided by Cleveland

Codified Ordinances 171.33.

       {¶11} In its journal entry and opinion dated April 29, 2009, the trial court denied

the Union’s motion for preliminary injunction, stating:


         SERB issued its opinion on October 31, 2008, and held that Cleveland had not committed an
       3


unfair labor practice when it stopped providing medical insurance after the collective bargaining
agreement expired on March 31, 2007.
       The language used in §171.33 is not ambiguous, thus the plain language of
       the statute must be applied. Section 171.33 exempts hospitalization
       coverage for Plaintiff when they are paid the prevailing wage rate under
       Ordinance §173.62. This court finds it is Defendant’s intent to exclude
       Plaintiff from hospitalization benefits found in §171.33 when they are paid
       at the Building Trades Rates. Plaintiff’s members are currently being paid
       at the Building Trades Rates and are therefore excluded from
       hospitalization coverage as provided to regular, full time employees under
       §171.33.

       {¶12} As to the remaining claims for benefits, other than the allowance for

hospitalization protection under Cleveland Codified Ordinances 171.33, Cleveland

requested the trial court to issue a ruling on the parties’ pending cross-motions for

summary judgment. On July 29, 2009, the trial court granted Cleveland’s motion for

summary judgment, while denying the Union’s motion for summary judgment.

       {¶13} On August 11, 2009, the Union appealed the April 29, 2009 judgment of the

trial court denying the motion for preliminary injunction and the July 29, 2009 judgment

of the trial court granting Cleveland’s motion for summary judgment. On August 16,

2010, this court dismissed the Union’s appeal for lack of a final, appealable order because

the trial court had not fully declared all of the parties’ rights and responsibilities.

       {¶14} On remand, the trial court requested supplemental briefing from the parties

on their cross-motions for summary judgment. On August 30, 2011, the trial court issued

its journal entry and opinion granting Cleveland’s motion for summary judgment and

denying the Union’s motion for summary judgment.               In its opinion, the trial court

declared that the Union members were not entitled to the benefits provided by the
Cleveland Codified Ordinances based on Cleveland’s retroactive payment of the building

trades prevailing wage in accordance with the order of the Supreme Court of Ohio.

      {¶15} On September 28, 2011, the Union filed this timely appeal, raising three

assignments of error for review:

      I. The trial court erred by ruling that members of the CEO Union are not
      entitled to the hospitalization allowance provided under Cleve. Cod. Ord.
      171.33.

      II. The trial court erred by granting defendant/appellee Cleveland’s motion
      for summary judgment.

      III. The trial court erred by denying plaintiff/appellant CEO Union’s
      motion for summary judgment.
                                 Law and Analysis

                        I. Cleveland Codified Ordinances 171.33

      {¶16} In its first assignment of error, the Union argues that the trial court erred by

ruling that Union members are not entitled to the hospitalization allowance provided

under Cleveland Codified Ordinances 171.33.

      {¶17} Where a trial court’s order is based on a pure question of law, including the

interpretation of a city ordinance, an appellate court may properly substitute its judgment

for that of the trial court because an important function of appellate courts is to resolve

disputed propositions of law. Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership,

78 Ohio App.3d 340, 604 N.E.2d 808 (2d Dist.1992). The question of whether Union

members are excluded from hospitalization benefits pursuant to Cleveland Codified

Ordinances 171.33 is a matter of law and subject to plenary review before this court.
Therefore, we will review the matter herein de novo, without deference to the

determination of the trial court.

       {¶18} The primary duty of a court in interpreting an ordinance is to give effect to

the intent of the legislative body enacting it. Cline v. Ohio Bur. of Motor Vehicles, 61

Ohio St.3d 93, 97, 573 N.E.2d 77 (1991). “In determining legislative intent, the court

first looks to the language in the statute and the purpose to be accomplished.” State v.

S.R., 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319 (1992). We read words and phrases

in context and construe them according to the rules of grammar and common usage.

Eastman v. State, 131 Ohio St. 1, 1 N.E.2d 140 (1936), at paragraph five of the syllabus.

       {¶19} Cleveland Codified Ordinances 171.33, states in relevant part:

       All regular full-time employees of the City except * * * members of the
       building trades paid under Section 173.62, or ordinances or parts of
       ordinances relating to the same subject matter * * * shall be entitled to an
       allowance for hospitalization protection.

       {¶20} In the case at hand, there is no dispute that the Union members are members

of the building trades. However, the Union contends that, unlike the language contained

in Cleveland Codified Ordinances 171.07, 171.28, 171.30, 171.32, and 171.60,4 171.33



         Longevity pay is provided, “except to members of the building trades paid on the basis of
       4


building trades prevailing wages * * *.” 171.07.
        Vacation leave is provided but “shall not apply to hourly rate craft employees paid on the
basis of building trades prevailing wages.” 171.28.
        Certain holidays are paid “except hourly rate craft employees paid on the basis of building
trades prevailing wages * * *.” 171.30.
        Group term life insurance is provided “except to hourly rate craft employees paid on the basis
of building trades prevailing wages.” 171.32.
        Finally, dental care insurance is provided “except to members of the building trades paid on
does not exclude hospitalization coverage to employees who are “paid on the basis of

building trades prevailing wages.” Rather, 171.33 excludes hospitalization coverage to

“members of the building trades paid under Section 173.62, or ordinances or parts of

ordinances relating to the same subject matter.” (Emphasis added.) The Union argues

that because 173.62 has been repealed and the text of the statute has not been produced,

Cleveland has failed to demonstrate that the Union members are excluded from

hospitalization coverage.

        {¶21} In response to the Union’s argument, Cleveland contends that, although

Cleveland Codified Ordinances 171.33 refers to a repealed ordinance, an examination of

the ordinance’s legislative history demonstrates an intent to exclude Union members from

hospitalization benefits where they are paid the prevailing wage rate. We agree.

        {¶22} On December 13, 1976, Ordinance No. 2315-76 amended Cleveland

Codified Ordinances 173.62. Ordinance No. 2315-76 was a compensation schedule for

construction equipment operators.5 On January 24, 1977, Cleveland passed Ordinance

No. 2090-B-76. Section 35 of this ordinance repealed 173.62, stating in relevant part,

“Section 173.62, as amended by Ordinance No. 2315-76, passed December 13, 1976, of


the basis of building trades prevailing wages.”   171.60.

        Ordinance No. 2315-76 references Cleveland Codified Ordinances 1.474101. On December
        5


27, 1976, pursuant to Ordinance No. 2924-76, Cleveland renumbered its ordinances, changing 173.62
to 1.47101. However, Ordinance No. 2315-76 was passed before the renumbering. Ordinance
2090-B-76 states that 173.62 was amended by Ordinance 2315-76. Thus, Ordinance No. 2315-76
shows the former number of 1.474101. Further, Cleveland Codified Ordinances 101.01 states,
“Code, title, chapter and section headlines do not constitute any part of the law as contained in the
Codified Ordinances” and does not change the content of the Ordinances.
The Codified Ordinances of Cleveland, Ohio, 1976, be and the same are hereby

repealed.”     Section 33 of Ordinance 2090-B-76 established the new construction

equipment operators’ compensation schedule.

       {¶23} Since the repeal of Cleveland Codified Ordinances 173.62, there have been

several amendments to Ordinance 2090-B-76. The subsequent amendments set new

compensation schedules for various city employees, including construction equipment

operators.     During the February 2009 preliminary hearing, Cleveland introduced

Ordinance No. 1459-08, effective September 22, 2008, which established a new schedule

of compensation for Union members that is in accordance with the building trades

prevailing wage rate.6

       {¶24} As discussed, by following the amendments to Cleveland Codified

Ordinances 173.62, it is reasonable to conclude that 173.62 set a compensation schedule

for craft positions that include construction equipment operators. Accordingly, we find

that the subsequent compensation schedules, including Ordinance No. 1459-08, constitute

an ordinance that “relate[s] to the same subject matter” as contained in the repealed

173.62.      Therefore, it is evident that Cleveland intended to exclude building trade

employees from hospitalization benefits pursuant to 171.33 when they are paid pursuant

to a compensation ordinance. Because Union members are currently being paid under a

compensation schedule that relates to the same subject matter of 173.62 and complies


         The record reflects that the maximum rate of pay in that schedule of compensation was equal
       6


to the building trades prevailing wage rate.
with the prevailing wage requirements of Cleveland Charter, Section 191, we conclude

that the trial court did not err in ruling that Union members are not entitled to the

hospitalization benefits provided under 171.33.

       {¶25} The Union’s first assignment of error is overruled.

                                  II. Summary Judgment

       {¶26} For the purposes of judicial clarity, we will consider the Union’s second and

third assignments of error together.   In its second assignment of error, the Union argues

that the trial court erred by granting Cleveland’s motion for summary judgment. In its

third assignment of error, the Union argues that the trial court erred in denying its motion

for summary judgment.

       {¶27} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336,

671 N.E.2d 241. Summary judgment is appropriate when, construing the evidence most

strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2)

the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can

come to but one conclusion, that conclusion being adverse to the nonmoving party.

Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696

N.E.2d 201, citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286,

653 N.E.2d 1196, paragraph three of the syllabus. The evidence must be viewed in the

light most favorable to the nonmoving party. Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
       {¶28} In its motion for summary judgment, Cleveland argued that it was entitled to

judgment as a matter of law because Union members were paid in accordance with the

building trades prevailing wage rate, albeit retroactively, thereby exempting Union

members from receiving certain benefits pursuant to the Cleveland Codified Ordinances.

       {¶29} Conversely, in its motion for summary judgment, the Union argued that it is

entitled to compensation for benefits provided under the Cleveland Codified Ordinances,

including 171.07 (longevity pay), 171.28 (paid vacations), 171.30 (paid holidays), 171.31

(paid sick leave), 171.32 (group term life insurance), 171.33 (medical insurance), and

171.60 (dental insurance), based on Cleveland’s initial failure to pay Union members at

the building trades prevailing wage rate from approximately May 1, 2007, to November

30, 2007. The Union submits that, pursuant to Harden v. Ohio Atty. Gen., 149 Ohio

App.3d 10, 2002-Ohio-4291, 775 N.E.2d 570 (10th Dist.);7 Ebert v. Stark Cty. Bd. of

Mental Retardation, 63 Ohio St.2d 31, 406 N.E.2d 1098 (1980); and Batra v. Wright St.

Univ., 84 Ohio App.3d 350, 616 N.E.2d 1137 (10th Dist.1992), the Union members had a

vested right to the benefits outlined in the relevant ordinances during the time periods in

which Cleveland failed to pay the appropriate prevailing wage rate. Thus, as we interpret

its argument, the Union contends that its members were entitled to compensation for the

benefits outlined in Cleveland Codified Ordinances 171.07, 171.28, 171.30, 171.31,




      Harden v. Ohio Atty. Gen., 2002-Ohio-4291, was affirmed by the Ohio
       7



Supreme Court in Harden v. Ohio Atty. Gen., 101 Ohio St.3d 137, 2004-Ohio-382,
802 N.E.2d 1112.
171.32. 171.33 and 171.60, in addition to Cleveland’s retroactive payment of the building

trades prevailing wage rate.

       {¶30} On review, we find Harden, Ebert and Batra to be distinguishable from the

facts at hand.   In Harden, Ebert, and Batra, the plaintiff-employees had earned or

received benefits that were retroactively revoked by the defendant-employer.           In

declaring that the revocation of benefits was impermissible, the Harden, Ebert, and Batra

courts held that once benefits are earned, “they become a vested right of the [plaintiffs]

and [can]not be retroactively revoked.” See Harden at ¶ 18, citing Ebert at 34; and Batra

at 354.   However, in contrast, the benefits at issue herein were not retroactively

withdrawn by Cleveland, i.e., Cleveland did not take away benefits that had become a

vested right of the Union members.        Instead, Cleveland merely stopped providing

benefits to Union members into the future based on the expiration of the parties’

collective bargaining agreement and Cleveland’s transition towards payment of the

prevailing wage rate.

       {¶31} More importantly, in Harden, Ebert, and Batra, there were no retroactive

payments or compensation to replace the benefits provided for under the Cleveland

Codified Ordinances. As discussed, the ordinances at issue provide benefits by means

other than monetary compensation to Cleveland employees, excluding employees who are

paid on the basis of the prevailing wage rate. These ordinances use varying language,

but all make it clear that if the employee is being paid at the prevailing wage rate, the

fringe benefits are not available to him or her. Here, the Union members were paid,
albeit retroactively, the correct prevailing wage rate that accounts for monetary

compensation instead of the fringe benefits the Union seeks.

       {¶32} Accordingly, we conclude that, based on the express language of

Cleveland’s ordinances, the Union members are not entitled to benefits as provided under

Cleveland Codified Ordinances 171.07 (longevity pay), 171.28 (paid vacations), 171.30

(paid holidays), 171.31 (paid sick leave), 171.32 (group term life insurance), 171.33

(medical insurance), and 171.60 (dental insurance). The Union members have been fully

compensated, and the retroactive nature of Cleveland’s prevailing wage payment does not

alter this conclusion. Any finding to the contrary would provide the Union members

with a windfall.

       {¶33} Viewing the evidence most strongly in favor of the Union, as we must, we

find that because there is no genuine issue as to any material fact, Cleveland is entitled to

judgment as a matter of law. Accordingly, the trial court properly granted summary

judgment in favor of Cleveland and denied the Union’s motion for summary judgment.

                                  III. Declaratory Relief

       {¶34} Alternatively, the Union argues that the trial court’s opinion granting

Cleveland’s motion for summary judgment must be reversed because the trial court failed

to provide complete declaratory relief. The Union contends that reversal is appropriate

here because the trial court’s August 30, 2011 judgment entry does not declare the rights

of Union members who are paid below the prevailing wage rates. We disagree.
       {¶35} This court has held that “[w]hen a trial court enters a judgment in a

declaratory judgment action, the order must declare all of the parties’ rights and

obligations in order to constitute a final, appealable order.” Stiggers v. Erie Ins. Group,

8th Dist. No. 85418, 2005-Ohio-3434, ¶ 5; Klocker v. Zeiger, 8th Dist. No. 92044,

2009-Ohio-3102, ¶ 13.

       As a general rule, a trial court does not fulfill its function in a declaratory
       judgment action when it fails to construe the documents at issue. Hence
       the entry of judgment in favor of one party or the other, without further
       explanation, is jurisdictionally insufficient; it does not qualify as a final
       order.

Highland Business Park, L.L.C. v. Grubb & Ellis Co., 8th Dist. No. 85225,

2005-Ohio-3139, ¶ 23; Klocker at ¶ 13.

       {¶36} In its complaint, the Union sought a declaration from the trial court that

Cleveland’s withdrawal of benefits was contrary to Cleveland’s ordinances and that

Cleveland was required to restore those benefits or reimburse Union members for the

value of those benefits. On examination of the trial court’s August 30, 2011 journal entry

and opinion, we find that the trial court adequately declared the parties’ rights and

responsibilities.

       {¶37} Here, the record reflects that on February 20, 2008, the Ohio Supreme Court

ordered Cleveland to compensate the Union members in the form of back pay for the time

period in which Cleveland improperly paid the employees below the prevailing wage rate.

 State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 117 Ohio

St.3d 1402, 2008-Ohio-594, 881 N.E.2d 271. Relying on the order of the Ohio Supreme
Court, the trial court concluded in its summary judgment opinion that Cleveland “paid

Union members the prevailing wage which compensates for the benefits they are now

seeking” and declared that Cleveland has no obligation to provide benefits pursuant to its

ordinances when it pays the Union members the building trades prevailing wage rate.

Although the Union disputes the conclusions reached by the trial court, we find that the

trial court adequately construed the ordinances at issue, addressed the declarations sought

by the Union in its complaint, and appropriately declared all of the parties’ rights and

obligations.

       {¶38} Based on the foregoing, the Union’s second and third assignments of error

are overruled.

       {¶39} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR
