Opinion
No. 90-1780
Submitted September 17, 1991 —
Decided February 12, 1992.
APPEAL from the Court of Appeals for Cuyahoga County, No. 57729.
On May 15, 1989, relator-appellant, International Union of Operating Engineers Local 18, 18A, 18B, 18C, 18RA, AFL-CIO ("Local 18"), filed a complaint in the Court of Appeals for Cuyahoga County seeking a writ of mandamus requiring the city of Cleveland, its council and its mayor ("city") to pay members of Local 18, the exclusive bargaining representative for the city's construction equipment operators and master mechanics, back and future wages in accordance with prevailing wage rates paid in private industry, as set forth in Section 191 of the city's charter. Before May 1, 1987, overtime wages were paid in conformity with the Construction Employers Association Building Agreement ("Agreement") with Local 18; sometime after May 1, 1987, the city unilaterally changed the wage structure for overtime. Also, prior to May 1, 1987, the city did not make shift differential payments as provided for in the Agreement. In early 1987, Local 18 and the city began negotiating a collective bargaining agreement pertaining to wages, hours, and other terms and conditions of employment, but negotiations reached an impasse in June or July 1987, and no such agreement was achieved.
On March 13, 1990 the parties entered into stipulations of fact that: as defined in R.C. 4117.01, the city recognized Local 18 as the exclusive bargaining representative of its construction equipment operators and master mechanics; since April 1, 1984, the city and Local 18 have been unable to negotiate a collective bargaining agreement; since May 1, 1987, the city has not paid prevailing wages; and no collective bargaining agreement exists between the parties concerning wages, hours, and other terms and conditions of employment.
The court of appeals denied the writ of mandamus, finding that the city's unilateral change in wages in this case arguably constituted an unfair labor practice under R.C. 4117.11(A)(5) for "[r]efus[ing] to bargain collectively with the representative of * * * employees recognized as the exclusive bargaining representative or certified pursuant to Chapter 4117. of the Revised Code," and for which the filing of an unfair labor practice charge under R.C. 4117.12 provides an adequate remedy at law.
The cause is before this court upon an appeal as of right.
Wuliger, Fadel Beyer, William Fadel and Kathleen M. Sasala, for appellant.
Craig S. Miller, Director of Law, and Franzetta D. Turner, for appellees.
The case presents a single question: When negotiations between public employees represented by an exclusive bargaining agent and a city have not produced a collective bargaining agreement, will mandamus lie to resolve a wage dispute by compelling compliance with a city charter provision pursuant to R.C. 4117.10(A)? We find that it does, and reverse the decision of the court of appeals and allow the writ.
The city contends that mandamus is not appropriate because of the availability of other remedies, namely R.C. 4117.11, 4117.12 and 4117.14. Although the city characterizes the negotiation procedures of R.C. 4117.14 as "elaborate yet precise," it contends that this remedy is adequate and can lead to the relief which Local 18 seeks. R.C. 4117.14 prescribes certain procedures for settling disputes arising out of negotiations involving existing or initial collective bargaining agreements. If the procedures do not resolve the dispute, then noncritical employees, such as those represented by Local 18, are granted the right to strike. Thus, the city argues, the right to strike is an adequate remedy.
The city also argues, and the court of appeals held, that its failure to negotiate a collective bargaining agreement may be an unfair labor practice for which relief is available under R.C. 4117.12. If so, SERB would investigate the violation and, if probable cause were found, conduct a hearing. In the appropriate case an order would issue and temporary relief or a restraining order would be granted. In addition, by appeal to the court of common pleas from the order granting or denying relief, the court could enforce, modify or set aside the order.
Local 18 contends that city charter Section 191 specifically requires the city to pay its city construction equipment operators and master mechanics according to the prevailing wages in industry. In support, Local 18 points to an excerpt from Section 191:
"Only in the case of employees in those classifications for which the Council provided in 1979 a schedule of compensation in accordance with prevailing wages paid in the building and construction trades, the schedule established by the council shall be in accordance with prevailing rates of salary or compensation for such services."
Local 18 coordinates that excerpt with a reference to R.C. 4117.10(A):
"* * * Where no agreement exists or where an agreement makes no specification about a matter, the public employer and public employees are subject to all applicable state or local laws or ordinances pertaining to the wages, hours, and terms and conditions of employment for public employees. * * *" (Emphasis added.)
Here, there is no existing collective bargaining agreement.
The statutory remedies proposed by the city would not grant the relief sought by Local 18. The relief available to Local 18, if the city were guilty of an unfair labor practice, under R.C. 4117.12, is a "cease and desist" order from SERB requiring collective bargaining which may be enforced through a court of common pleas. R.C. 4117.13. The ultimate relief available for an unresolved dispute under R.C. 4117.14 is the right to strike.
Neither remedy directly enforces Local 18's right, established by charter provision pursuant to R.C. 4117.10(A), to have its members compensated in accordance with prevailing wages in industry. We have allowed resort to local law under R.C. 4117.10(A) where collective bargaining agreements did not specifically cover certain matters. See State, ex rel. Clark, v. Greater Cleveland Regional Transit Auth. (1990), 48 Ohio St.3d 19, 548 N.E.2d 940; Bashford v. Portsmouth (1990), 52 Ohio St.3d 195, 556 N.E.2d 477; State, ex rel. Caspar, v. Dayton (1990), 53 Ohio St.3d 16, 558 N.E.2d 49. The same reasoning applies here when there is no collective bargaining agreement.
Local 18's statutory remedies are not adequate and the city charter, in light of R.C. 4117.10(A), identifies a clear legal right to the relief sought and a concomitant clear legal duty to grant that relief.
We reverse the judgment of the court of appeals and allow a writ of mandamus directing respondents to comply with city charter Section 191 by paying back and future wages to the city's construction equipment operators and master mechanics, members of International Union of Operating Engineers Local 18, 18A, 18B, 18C, 18RA, AFL-CIO, in accordance with prevailing wage rates.
Judgment reversed and writ allowed.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
HOLMES, J., dissents.
I would affirm the court of appeals in all respects.