After five different lawsuits spanning nine years, Cleveland’s construction-equipment operators and master mechanics finally got an answer earlier this month: unless a collective bargaining agreement had set their pay—which it had not—the City Charter required that they receive prevailing wages, and for nearly 11 years they had not done so. In State ex rel. Municipal Construction Equipment Operators’ Labor Council v. City of Cleveland (Aug. 15, 2007), 114 Ohio St.3d 183, 2007-Ohio-3831, the Ohio Supreme Court ordered the City to pay them the difference.
The requirement had been in the Charter since a 1979 ordinance, and for the first eight years, the equipment operators and mechanics had received the prevailing wage rate. But for the next 20 years, the requirement and the way of calculating prevailing wage were disputed, both in the courts and before the State Employment Relations Board (known as “SERB”).
Although the latest decision came from the Ohio Supreme Court, it was based, in part, on decisions by SERB, which had exclusive jurisdiction to determine whether an apparent agreement to less-than-prevailing wages was the result of collective bargaining. If it had been, then the Charter provision would not apply, and the wages already paid would have been adequate. But if SERB found that no collective bargaining agreement had been in place, then the Charter requirement applied, and the wages paid were not enough.
Last September, SERB ruled that the lower wages were not the result of collective bargaining. So why didn’t that end the case? The City and the union still could not agree on the details, including the calculation of prevailing wage rates and sick pay. So the union filed an original action (a “mandamus action,” not an appeal) in the Ohio Supreme Court, asking the Court to compel the City to pay the wage differential.
In order to succeed on a mandamus action, the union had to show (1) that its members had a clear right to the wages and benefits, (2) that the City had a clear legal duty to pay them, and (3) that no other legal remedy was adequate.
As earlier proceedings had resolved most of the legal rights and duties, much of this month’s decision focused on the City’s argument that the union had another adequate legal remedy: It could negotiate a resolution through collective bargaining. The Court disagreed. In order to be “adequate,” any remedy had to be complete, beneficial and speedy, the Court said. But “the ability to negotiate a resolution of a dispute concerning past wages and benefits in collective bargaining does not provide a complete, beneficial and speedy alternative remedy.”
The City also argued that a collective bargaining agreement reached in February 2005 had resolved the issues with a payment of $2,500 to each affected employee. That agreement had stated specifically that it had no effect on lawsuits related to claims for back pay except for permitting a $2,500 offset to any judgment against the City.
Since the mandamus action in the Supreme Court had not been pending when the agreement was negotiated, the City argued that the clause in the agreement entitled “Agreement Has No Effect on Pending Litigation” did not apply to the mandamus action. Again, the Court did not agree. The only mention of “pending litigation” was in the title to the clause; the text itself contained no such limitation. So the effect of the collective bargaining agreement was exactly what it said: It reduced the amount the City would otherwise have had to pay by $2,500 per person.
The union did not get everything it requested, however. The Court found no evidence as to the amount of sick-leave benefits each member had earned, so it refused to compel payment of these benefits. Nor would it award the attorney fees requested, as the union’s brief had omitted any argument for them. So the municipal construction equipment operators had to settle for 10+ years of the pay differential, minus $2,500 each.