Elmer L. Dunaway v. City of Cincinnati, 83-LW-2524
| Decision Date | 13 July 1983 |
| Docket Number | C-820735,83-LW-2524,C-820725 |
| Parties | ELMER L. DUNAWAY, MONROE E. NESMITH and QUEEN CITY LODGE NO. 69, FRATERNAL ORDER OF POLICE, Plaintiffs-Appellants, v. CITY OF CINCINNATI and WILLIAM V. DONALDSON, Defendants-Appellees. FORREST L. BUCKLEY, DANIEL N. BRINKER and CINCINNATI FIREFIGHTERS ASSOCIATION, Plaintiffs-Appellants, v. CITY OF CINCINNATI and WILLIAM V. DONALDSON, Defendants-Appellees. APPEAL TRIAL NOS. A-7708543, A-7706198 |
| Court | Ohio Court of Appeals |
Civil Appeal from Court of Common Pleas.
Mr Donald E. Hardin, 1529 Madison Road, Cincinnati, Ohio 45202 and Mr. James W. Hengelbrok, 500 Tri-State Building, Cincinnati, Ohio 45202, for Plaintiffs-Appellants.
Messrs. Richard A. Castellini, Robert H. Johnstone, Jr. and Ms. M. Kathleen Robbins, Room 214, City Hall, Cincinnati, Ohio 45202, for Defendants-Appellees.
(CONSOLIDATED)
On June 29, 1977, the City of Cincinnati through its then city council passed Ordinance 258-1977, amending Section One of Article XVII of the City Administrative Code to provide, in relevant part:
All persons hereafter appointed to positions in the city service shall be residents of the city of Cincinnati at the time of their appointment and shall continue to maintain their primary place of residence within the city at all times during their continued service with the city.
The ordinance also provided a requirement for those in the city service currently residing outside the city to move into the city upon any change in residence. Exhibit 3. This ordinance superseded an earlier ordinance, No. 200-1967, passed May 17, 1967, which had permitted residency to be maintained anywhere within Hamilton County, Ohio. On August 2, 1977 and October 18, 1977, the Cincinnati Firefighters Association, Local No. 48, and the Fraternal Order of Police, Queen City Lodge No. 69, the bargaining agents for their respective uniformed services, filed suit contesting the validity of Ordinance 258-77, the terms of which both vigorously opposed. These two suits, which were consolidated for trial, as they were here on appeal, sought a declaratory judgment that the earlier relaxed residency requirement had been incorporated into labor-management contracts binding on the parties and that the 1977 ordinance was void, or, alternately, directing the dispute to binding arbitration to determine whether county-wide residency was a term and condition of employment under their respective labor-management contracts.
The matter was initially tried solely on the issue of the constitutionality of the challenged ordinance, with the contract issues, including arbitration rights, reserved for later determination, if necessary. A decision by the trial court favorable to plaintiffs was reversed by this Court in case No. C-790212, August 29, 1979, a decision affirmed by the Ohio Supreme Court in Buckley v. City of Cincinnati (1980), 63 Ohio St.2d 42, 406 N.E.2d 1106. The matter was subsequently remanded to the trial court for a determination on the contract issues raised by the pleadings. These issues were then tried by the court in 1982, resulting in the granting of the city's motion to dismiss at the conclusion of the plaintiffs' evidence. On August 27, 1982, the trial court incorporated Findings of Fact and Conclusions of Law into its entry of judgment and, at about the same time, entered its denial, nunc pro tunc to April 1, 1981, of the plaintiffs' demand to refer the issues to arbitration. The instant appeals timely followed this entry of final judgment.
Simply stated, it is the position of the plaintiffs-appellants, representing the uniformed services of the City of Cincinnati (herein after "Services"), that they had negotiated in a collective bargaining process to secure passage of the earlier Ord. 200-1967 and that it has been incorporated as a "negotiated practice" or "past practice" into labor-management contracts entered into by the parties covering the year 1976®1¯ (as amended, from time to time, thereafter). They argue that passage of the 1977 ordinance purporting to limit residency to the City of Cincinnati gave rise to grievances under the contract which were, in the first instance, arbitrable on demand and, in any event, required a determination that the city could not thus unilaterally breach its negotiated agreements with its uniformed services. The trial court concluded to the contrary, holding the dispute non-arbitrable, T.d. 28, and further holding that "the two plaintiff bargaining units failed to accomplish the incorporation of a county-wide residency provision in their respective written labor agreements prior to the expiration of the contractual periods...." T.d. 27.®2¯ This judgment gave rise to the two assignments of error presented for review, phrased by appellants as follows:
Footnote 1 . Until the parties' execution of the initial labor-management agreements in 1976, apparently triggered by the decision in Dayton Classroom Teachers Association v. Dayton Board of Education (1975), 41 Ohio St. 2d 127, 323 N.E.2d 714, permitting a public body discretionary authority to enter into a collective bargaining agreement with its employees so long as such agreement neither conflicted with nor abrogated statutorily imposed duties on the public body, and authorizing binding grievance arbitratio in such agreements, there had been no formal collective bargaining agreement between the uniformed services and the city, a policy dictated by a resolution of city council on labor management policy. Bargaining was accomplished instead in a sequentia procedure outlined in footnote 3, below. It is these preelse steps, argue the appellants, that they followed in their success campaign to secure the passage of the 1967 ordinance conferring county-wide residency allowances.
Footnote 2 . According to the testimony of the plaintiffs, the exigencies of time precluded the parties from detailing all past negotiated or other practices which would, unless otherwise required by the express terms of the written agreement, govern the conduct of management and its employees, and breach of which would give rise to a grievance. A period of years was provided to formaliz these past practices into written form, and a number were accordingly so formalized, although the residency requirement was not one of them. This fact was apparently persuasive to the trial court, although vigorously disputed by appellants, who argue, inter alia, that passage of the 1977 ordinance during the period of time when this "formalizing" process was continuing effectively and illegally took matters out of their hands, and constituted an obvious grievance.
Because we deem the second assignment of error to present the threshold (and dispositive) question, we address it first.
We begin our examination of the issue as to arbitrability with the initial labor agreements executed in 1976 between the city and the two bargaining agents. The Fraternal Order of Police (hereinafter "FOP") contract covered a term from April 23, 1976 to December 25, 1976 and the Firefighters Association (hereinafter "Firefighters") a term from December 28, 1975 to December 25, 1976. Both renewed automatically, and were effective until the execution of subsequent agreements with the FOP and Firefighters covering the years 1977 and 1978, Exhibits 2, 4, 32, 39. The relevant portions of the two 1976 agreements were phrased as follows:
[1] FOR AGREEMENT
Grievance Procedure
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