[Cite as Parma v. Parma Firefighters Assn., Local 639, 2013-Ohio-2918.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99263




                                      CITY OF PARMA
                                                           PLAINTIFF-APPELLEE

                                                     vs.

PARMA FIRE FIGHTERS ASSOCIATION,                                           LOCAL 639
                                                           DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-749123

        BEFORE: Keough, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                          July 3, 2013
ATTORNEYS FOR APPELLANT

William E. Froehlich
Ryan J. Lemmerbrock
Susannah Muskovitz
Muskovitz & Lemmerbrock, L.L.C.
The BF Keith Building
1621 Euclid Avenue, Suite 1750
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Timothy G. Dobeck
Director of Law
City of Parma
6611 Ridge Road
Parma, Ohio 44129

Patrick J. Hoban
Stephen S. Zashin
Zashin & Rich Co., L.P.A.
55 Public Square
Fourth Floor
Cleveland, Ohio 44113

Timothy B. Miller
Assistant Prosecutor
City of Parma
6611 Ridge Road
Parma, Ohio 44129
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Parma Fire Fighters Association Local 639 (the

“union”), appeals from the trial court’s judgment denying its motion to show cause against

plaintiff-appellee, the city of Parma (the “city”). For the reasons that follow, we reverse

and remand with instructions to the trial court to order the city to immediately pay back

pay and benefits to Anthony DeCarlo from December 3, 2010 until August 15, 2012.

                                      I. Background

       {¶2} The city and the union are parties to a collective bargaining agreement

(“CBA”).       Under the CBA, disputes between the city and the union concerning the

application and interpretation of the agreement must be resolved through final and binding

arbitration.

       {¶3}      Anthony DeCarlo had been a Parma fire fighter for 15 years before the city

discharged him on December 8, 2009, because, the city alleged, DeCarlo had tested

positive for cocaine during a random drug test and was dishonest about his drug use when

questioned by city representatives after the test. The union filed a grievance on DeCarlo’s

behalf, contesting the discharge for lack of just cause under the CBA. The city denied the

grievance and the union requested arbitration. On December 3, 2010, after a hearing, the

arbitrator issued his award. He found that the city did not have just cause to terminate

DeCarlo and ordered that he be “promptly reinstated” to his former job without retroactive

back pay or benefits.

       {¶4} The city subsequently filed an application in the common pleas court to
vacate, modify, or correct the arbitration award. The union filed a counter-application for

an order confirming and enforcing the award. In its counter-application, the union asked

the court to order the city to (1) fully comply with the arbitrator’s award by immediately

reinstating DeCarlo with back pay and reimbursement for lost benefits from December 3,

2010 (the date of the arbitrator’s award) until his reinstatement date; and (2) pay pre- and

postjudgment interest from December 3, 2010 until DeCarlo was reinstated because the

city had refused to comply with the arbitrator’s order. The union also asked the court to

hold a hearing to determine whether the city’s conduct in not promptly reinstating DeCarlo

was frivolous and warranted an award of attorney fees under R.C. 2323.51(B)(2).

       {¶5} On September 1, 2011, the trial court issued its order confirming and

enforcing the arbitrator’s award. Specifically, the judgment entry stated:

       [T]he Arbitration Award is confirmed and to be enforced. This Court
       denies [the union’s] request for an award of interest, as the Award made by
       Arbitrator Nelson does not award the payment of money. Finally, [the
       union’s] request for a hearing to determine attorney’s fees pursuant to R.C.
       2323.51 is denied.

       {¶6} The city appealed the trial court’s judgment. On March 8, 2012, this court

affirmed the trial court’s judgment confirming and enforcing the arbitration award.

Parma v. Parma Fire Fighters Assn. Local 639, 8th Dist. No. 97342, 2012-Ohio-932. On

July 25, 2012, the Ohio Supreme Court declined jurisdiction to consider the city’s appeal.

       {¶7} On August 15, 2012, the city reinstated DeCarlo to his former position.

That same day, however, the city placed him on leave pending the outcome of a

disciplinary hearing relating to allegations that DeCarlo had testified falsely about his drug
use during the 2010 hearing before the arbitrator.

       {¶8} On August 23, 2012, the union filed two motions in the common pleas court:

(1) a motion to show cause why the city should not be held in contempt for both its refusal

to reinstate DeCarlo and its refusal to pay him back pay from December 3, 2010 to August

15, 2012, when he was reinstated; and (2) a motion for a temporary restraining order and

preliminary injunction asking the court to enjoin the city from holding a pre-disciplinary

hearing with DeCarlo regarding issues that had already been addressed during arbitration.

The union’s motions were extensively briefed by both parties.

       {¶9} On November 8, 2012, the trial court denied both motions. In its journal

entry, the court found that the city “insists they have complied with this court’s order and

reinstated Firefighter DeCarlo and then placed him on paid leave with full benefits

pending the disciplinary investigation.” The court further found that it lacked jurisdiction

to issue the requested injunction because the conduct that formed the basis of the new

charges (i.e., submitting false testimony at the arbitration hearing) was distinct from the

charges addressed in the arbitrator’s award. Accordingly, the court denied the union’s

motion to show cause and motion for temporary restraining order and preliminary

injunction.

                                       II. Analysis

       {¶10} The union now appeals from the trial court’s judgment. Specifically, the

union contends that the trial court abused its discretion in not finding the city in contempt

for its refusal to pay DeCarlo back pay and lost benefits from December 3, 2010, the date
of the arbitrator’s award, until August 15, 2012, when he was reinstated. The trial court’s

judgment did not rule on the union’s back pay request for DeCarlo; accordingly, we

presume it was denied. See Vandenhaute v. Filer, 8th Dist. No. 80405, 2002-Ohio-3640, ¶

16, fn.3., citing Georgeoff v. O’Brien, 105 Ohio App.3d 373, 378, 663 N.E.2d 1348 (9th

Dist.1995).

      {¶11} A wrongfully excluded public employee may recover back pay and related

benefits for the period he was wrongfully excluded from employment. 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, ¶ 24. The purpose of a back pay award “in a case involving a wrongfully

excluded public employee” is to make the employee whole and put him in the position he

would have been absent the violation of the employment contract. Id. at ¶ 26, 33.

      {¶12} Where an arbitration award orders reinstatement without retroactive back pay

(i.e., from the date of discharge), such as in this case, back pay and the value of lost

benefits are calculated from the date of the arbitration award until the date of

reinstatement. Bd. of Trustees of Miami Twp. v. Fraternal Order of Police, 12th Dist.

Nos. CA99-03-028 and CA99-04-031, 2000 Ohio App. LEXIS 2049 (May 15, 2000).

      {¶13} “When parties agree to submit their disputes to binding arbitration, they have

bargained for the arbitrator’s resolution of the controversy and agree to accept the

arbitration award.” Id. at *22. In this case, the parties’ dispute was resolved through the

arbitrator’s award, which found that the city had terminated DeCarlo without just cause

under the CBA and ordered that he be promptly reinstated. The arbitrator’s award was
confirmed and enforced by the trial court, and that judgment was affirmed by this court.

Accordingly, the city was required to compensate DeCarlo for the time he was wrongfully

excluded from his public employment, i.e., from December 3, 2010, to August 15, 2012,

and the trial court should have found the city in contempt for its failure to do so.

       {¶14} The city contends that the trial court’s judgment confirming and enforcing

the arbitrator’s award did not “clearly and definitely” require it to compensate DeCarlo for

lost wages and benefits from the date of the arbitrator’s award until his reinstatement and,

therefore, the city cannot be found in contempt for its refusal to do so. The city’s

argument is specious.

       {¶15} Accepting the city’s argument would mean that it also had no duty to

reinstate DeCarlo to his former position because the trial court’s enforcement order did not

“clearly and definitely” order the city to do so. But even without express language in the

trial court’s judgment entry ordering the city to reinstate DeCarlo, the city clearly

understood it was required to do so: it reinstated him on August 15, 2012.         Indeed, the

trial court would certainly have found the city in contempt of the enforcement order if it

had not reinstated DeCarlo, even though there is no language in the enforcement order

expressly directing the city to do so.       The trial court’s judgment ordered that the

arbitrator’s award was “confirmed and to be enforced,” a judgment that included both

reinstatement of DeCarlo to his former position and payment to him of lost wages and

benefits, calculated from the date of the arbitrator’s award until his reinstatement.

       {¶16} In fact, the city repeatedly acknowledged to the trial court its duty to
compensate DeCarlo for his wrongful exclusion from employment.               In its brief in

opposition to the union’s motion to confirm the arbitration award, the city stated that “if

this court affirms the arbitrator’s award, [the city] will have to address lost work between

the date of the arbitration decision and this court’s decision. * * * [T]hat will involve a

separate legal claim * * * and an award for payment of money.”      In its brief in opposition

to the union’s motion to show cause, the city informed the court that “it ha[d] not refused

to pay back pay for the twenty-one months that DeCarlo was not reinstated,” but could not

yet do so because the union had not provided any documentation of the amount due, and

had “not given the city enough time to accumulate its data or determine a back pay

amount.”    Implicitly telling the court that it would pay DeCarlo when the proper

documentation was received, the city stated:

       Before the city pays DeCarlo any back pay, the payroll department must
       determine the exact number of working days he was out of work, the rate of
       pay that he was entitled to for those days, and any increase in pay he would
       be entitled to during the time that he was off. Additionally, there may be
       set-offs for any income DeCarlo received during his time off and, as such the
       union must provide the city with his tax returns. Therefore, the city is not in
       contempt because * * * it has not refused to pay back pay for the twenty-one
       months that DeCarlo was not reinstated.

       {¶17} Later, in its sur-reply to the union’s motion to show cause, the city told the

trial court that “the city never ‘refused’ to discuss potential payment to DeCarlo for the

period from the Award until his reinstatement” and that the city’s decision not to respond

to the union’s demand for compensation, which the union calculated at $155,000, was

merely because the union had filed a motion to show cause.

       {¶18} The city’s assertion now to this court that it has no obligation to pay DeCarlo
any compensation for the 21 months the city refused to reinstate him flies in the face of the

representations it made to the trial court, and we reject it. The trial court ordered that the

arbitrator’s award was to be enforced, and this court affirmed the trial court’s judgment.

Accordingly, the city was required to both reinstate DeCarlo to his former position and

pay him for the compensation and benefits lost during the 21 months the city did not

reinstate him.

       {¶19} We are likewise unpersuaded by the city’s argument that the language of the

judgment entry denying the union’s request for an award of interest “as the Award made

by Arbitrator Nelson does not award the payment of money” indicates that the city is not

required to pay DeCarlo for any lost compensation or related benefits from the date of the

arbitrator’s award until his reinstatement.

       {¶20} In its counter-application to enforce the arbitration award, the union alleged

that the city had refused to comply with the arbitrator’s award and, accordingly, asked for

statutory interest from the date of the arbitration award until DeCarlo was reinstated. To

compensate an aggrieved employee and make him whole, R.C. 1343.03 provides for a trial

court’s award of interest on the back pay due to a wrongfully discharged employee from

the date of the arbitrator’s award until reinstatement. Bd. of Trustees of Miami Twp. v.

Fraternal Order of Police, 12th Dist. Nos. CA99-03-028 and CA99-031, 2000 Ohio App.

LEXIS 2049 at *20; Erie Cty. Sheriff v. Fraternal Order of Police, 6th Dist. No. E-99-075,

2000 Ohio App. LEXIS 6050 (Dec. 22, 2000). In Erie Cty. Sheriff, for example, the Sixth

District held that the trial court had abused its discretion in denying the union’s request for
prejudgment interest retroactive to the date of the arbitration award where the county

sheriff had continually refused to reinstate a corrections officer, despite the arbitrator’s

award that ordered reinstatement. Id. at *8. Thus, in this case, in light of the city’s

refusal to reinstate DeCarlo, the trial court could have awarded pre- and postjudgment

interest on the back pay due him from the date of the arbitrator’s award until he was

reinstated, even though the arbitrator did not order any retroactive back pay.1

       {¶21} Accordingly, the trial court’s ruling on the union’s request for pre- and

postjudgment interest is not related to whether the city is required to pay DeCarlo back pay

from the date of the arbitration award until his reinstatement. On December 3, 2010, the

arbitrator ordered that DeCarlo be “promptly reinstated,” but the city did not reinstate him

until August 15, 2012. Consequently, the city must pay him back pay and lost benefits

from December 3, 2010, until August 15, 2012.

       {¶22} Finally, we reject the city’s argument that the union’s request for back pay

and benefits from the arbitrator’s award until reinstatement is barred by the principle of

claim preclusion. “Claim preclusion prevents subsequent actions, by the same parties or

their privies, based upon any claim arising out of a transaction that was the subject matter

of a previous action.”          O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59,

2007-Ohio-1102, 862 N.E.2d 803, ¶ 6. The city contends that under the principle of claim

preclusion, the union is precluded from asserting a claim for back pay and lost benefits



        The union did not appeal the trial court’s denial of its request for interest, and we express no
       1


opinion regarding the trial court’s ruling on that issue.
because the trial court’s enforcement order did not order back pay and the union did not

appeal that judgment.

       {¶23} The union’s claim for back pay is not precluded. As discussed extensively

above, the trial court’s judgment confirming and enforcing the arbitrator’s award required

the payment of back pay from the date of the arbitrator’s award until the reinstatement

date. Thus, the union’s motion to show cause was the appropriate avenue for the union to

seek enforcement of the trial court’s judgment.

       {¶24} R.C. 2705.02 states that “[a] person guilty of any of the following acts may

be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ,

process, order, rule, judgment, or command of a court or officer * * *.” In reviewing a

trial court’s decision regarding a motion to show cause, this court applies an abuse of

discretion standard. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d

1249 (1981); Perkins v. Gorski, 8th Dist. No. 98478, 2013-Ohio-265, ¶ 9. In denying the

union’s motion to show cause, it is apparent that the trial court relied on the city’s

representations that it had both reinstated DeCarlo and intended to pay him back pay after

it received appropriate documentation. However, because the city refused to pay DeCarlo

any back pay, and thus did not comply with the trial court’s judgment confirming and

enforcing the arbitrator’s award, we are constrained to find that the trial court abused its

discretion in not finding the city in contempt.

       {¶25} Reversed and remanded with instructions to the trial court to order the city to

immediately pay back pay and lost benefits to DeCarlo from December 3, 2010 to August
15, 2012.

      It is ordered that appellant recover from appellee 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.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
