IN THE SUPREME COURT

IN THE SUPREME COURT OF OHIO

TIMOTHY METCALFE, et al., )

)

Appellants, )

) On Appeal from the Summit County

-vs.- ) Court of Appeals, Ninth Appellate

) District

THE CITY OF AKRON, )

) Court of Appeals Case No. 23068

Appellee. )

___________________________________________________________________________

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANTS TIMOTHY METCALFE, et al.

___________________________________________________________________________

WARNER MENDENHALL, #0070165 VINCENT J. TERSIGNI, #0040222

JACQUENETTE S. CORGAN, #0072778 ASHLEY M. MANFULL, #0071372

The Law Offices of Warner Mendenhall, Inc. Vorys, Sater, Seymour & Pease, LLP

190 North Union St., Ste. 201 106 S. Main St., Ste. 1100

Akron, Ohio 44304 Akron, Ohio 44308

(330) 535-9160; (330) 762-9743 (fax) (330) 208-1041; (330) 208-1077 (fax)

warnermendenhall@hotmail.com vjtersigni@vssp.com

j.corgan@justice.com ammanfull@vssp.com

and and

LARRY D. SHENISE, #0068461 MAX ROTHAL, #0009431

Attorney at Law City of Akron Law Director

190 North Union St., Ste. 201 161 S. High St., Ste. 202

Akron, OH 44304 Akron, OH 44308

(330) 252-9950; (330) 798-7779 (fax) (330) 375-2030; (330) 375-2041 (fax)

LShenise@neo.rr.com rothama@ci.akron.oh.us

COUNSEL FOR APPELLANTS COUNSEL FOR APPELLEE

Explanation of Why This Case is a Case of Public

Or Great General Interest

This case focuses upon the way that cities fulfill their promises to their retired police officers and firefighters, and involves two questions critical to collective bargaining and the rights of retired public employees in Ohio: 1) whether city ordinances in effect when a collective bargaining agreement is entered become unwritten but effective portions of the agreement; and 2) whether a city can unilaterally alter the terms of a collective bargaining agreement by appending a “letter of intent” to the agreement, without bargaining for it.

This case pits the City of Akron against its own ordinances. In 1962, Akron City Council enacted legislation that required the City to provide retired firefighters and police officers city health insurance benefits, and authorized the city’s finance director to carry out that mandate. Later, the City appended to its collective bargaining agreements with the Fraternal Order of Police and the Firefighters’ union letters of intent that stated the City would provide health benefits to the retirees, but only if the Ohio Police & Fire Pension Fund did not provide coverage. There was evidence that the parties did not bargain for these letters of intent, and the letters appended to the latest agreements contained no language indicating that they had been subject to bargaining.

Federal collective bargaining jurisprudence, which this Court has used as a model for its own public employees collective bargaining decisions, incorporates into collective bargaining agreements all laws in effect at the time an agreement is reached, even if the laws are not explicitly incorporated into the agreement. For example, the minimum wage and overtime provisions of the federal Fair Labor Standards Act need not be reprinted in collective bargaining agreements because they are the effective law of the land at the time the agreements are reached. Nevertheless, the court of appeals selectively examined Akron’s 1962 ordinance and held that it was not enforceable by Akron’s police and fire retirees.

Federal collective bargaining jurisprudence also holds that letters of intent do not become enforceable parts of collective bargaining agreements unless the parties have bargained for their inclusion and their effectiveness. There was no evidence on the face of the letters appended to either the firefighters’ collective bargaining agreement or the police officers’ collective bargaining agreement that the letters had been bargained for, and the parol evidence on that question conflicted. The court of appeals nevertheless ignored those facts and held that the letters of intent were enforceable against Akron’s police and fire retirees.

The way the court of appeals ruled is also alarming. Not only did the court of appeals ignore the weight of precedent regarding collective bargaining, it:

Construed the meaning of Akron’s 1962 ordinance based on only a portion of the ordinance, rather than on the entire ordinance; determined whether the letters of intent were bargained for in the latest collective bargaining agreements by looking at past agreements, instead of the four corners of the agreements at issue;
Declared that the City’s policy denying city health insurance coverage to retirees was the “law of the shop” and was therefore incorporated into the CBAs;
Assiduously ignored evidence and inferences in the Appellants’ favor in reviewing a trial court’s decision to dismiss the Appellants’ case on summary judgment, and instead recited the City’s position as “undisputed”; and
Misrepresented the Appellant’s arguments in order to do all of the above.

The danger lurking in the court of appeals’ ruling in this case goes beyond allowing the City of Akron to neglect the retired police officers and firefighters who had served the city so well. It allows any city to unilaterally alter the terms of any collective bargaining agreement by fiat, with an unbargained-for letter of intent, and to ignore the legal obligations imposed upon it by its own legislature. The effect would be to gut public employees’ labor contracts and allow municipalities to run roughshod over their workers and retirees. Such a result would be untenable. In order to prevent such a catastrophe, this court must grant jurisdiction to hear this case and review the court of appeals’ erroneous and dangerous decision.

Statement of the Case and Facts

Timothy Metcalfe, a retired Akron firefighter, and William Biasella, a retired Akron police officer, filed this action for themselves and on behalf of a class of an estimated 900 Akron safety force retirees and their widows in the Summit County Common Pleas Court. The complaint presented five counts: for a declaratory judgment; that the City of Akron had engaged in an unfair labor practice; breach of contract; promissory estoppel; and detrimental reliance. The Plaintiffs later voluntarily dismissed their unfair labor practice, promissory estoppel and detrimental reliance causes of action. It is important to note that the retirees did not file suit under R.C. Chap. 4117, which governs public employees collective bargaining; as retirees, they cannot bring suit as collective bargaining unit members, but they have a cause of action as intended third-party beneficiaries to their respective collective bargaining agreements.

In a nutshell, the retirees wanted to the City of Akron to live up to the legal obligation it imposed upon itself in 1962, when Akron City Council passed an ordinance that would provide retired police and firefighters with health insurance benefits under the City’s plan, which has traditionally provided health insurance benefits to Akron’s active employees at no cost. Akron is likely to be the only city in Ohio to have done so. In 1973, the Ohio Police & Fire Pension system, or OP&F, began offering retirees health insurance coverage, then at no cost. OP&F eventually began charging retirees for health care coverage.

In 1974, the City of Akron began a policy of requiring its police and fire retirees to enroll in OP&F benefits. Beginning in the early 1990s, the City unilaterally appended to police and firefighters’ collective bargaining agreements letters of intent stating that the City would provide health insurance coverage to retirees on a secondary basis – in other words, if the OP&F did not provide coverage. However, there is no language in any CBA or in the letters of intent themselves to indicate that the parties bargained for their incorporation into the agreements. In the meantime, the retirees and their spouses began feeling the effects of the City’s policy as OP&F premiums have risen within the last several years to an average of more than $500 per month, per retiree.

The City filed a motion for summary judgment in early May 2005, which the Plaintiffs answered in early June. On July 7, 2005, the trial court issued a brief order denying summary judgment to the City. On January 12, 2006, as the parties prepared for a bench trial, the trial court sua sponte reversed itself and granted summary judgment to the City of Akron.

The court of appeals erred in ruling that the 1962 ordinance in no way obligated the City to provide health insurance coverage under the same plan as active employees; that the letters of intent were bargained for; and that the practice of forcing retirees to accept OP&F benefits was an enforceable, though unwritten, “law of the shop” term of the collective bargaining agreements.

In support of their position on these issues, the Appellants present the following argument.

Argument in Support of Propositions of Law

Proposition of Law No. 1: All ordinances, statutes and regulations in effect at the time a collective bargaining agreement goes into effect are incorporated into that collective bargaining agreement as if they were fully written into the agreement’s terms.

Courts have held that federal, state and local laws and ordinances automatically become incorporated into every collective bargaining agreement, even if the laws and ordinances are not written into the CBA’s terms. “Unless a collective bargaining agreement specifically eliminates a right provided an employee by statute, an employee retains his entitlement to that right.” City of Lakewood v. State Employment Relations Bd. (1990), 66 Ohio App.3d 387, 1990 SERB 4-35, 584 N.E.2d 70, citing State ex rel. Clark v. Greater Cleveland Reg. Transit Auth. (1990), 48 Ohio St.3d 19, 548 N.E.2d 940. See also Keeling v. City of Grand Junction (Colo. 1984), 689 P.2d 679, 680. For example, it is widely acknowledged that “the statutory obligation contained in the Fair Labor Standards Act is read into and becomes a part of every employment contract between an employer and employee subject to the terms of the Act.” Northwestner Yeast Co. v. Brout, Inc., 133 F.2d 628, 631 (6^th Cir. 1943).

After all, it is well-settled that “[a] collective bargaining agreement is a contract, and ‘[t]he overriding concern of any court when construing a contract is to ascertain and effectuate the intention of the parties.” State ex rel. Kabert v. Shaker Heights City Bd. of Educ., 78 Ohio St.3d 37, 44, 1997-Ohio-242, 1997 SERB 4-9, 676 N.E.2d 101, 116 Ed.Law Rep. 359. Toward that end, “[t]erms in a collective bargaining agreement shall be given their ordinary meaning in the absence of evidence indicating that the parties to the contract intended to expand or otherwise deviate from that meaning.” Toledo Police Patrolman’s Ass’n, Local 10 v. City of Toledo (1998), 127 Ohio App.3d 450, 462, 713 N.E.2d 78, and Independence Fire Fighters, 121 Ohio App.3d at 722, quoting Detroit Coil v. Internat’l Assn. of Machinists & Aerospace Workers, Lodge No. 82 (6^th Cir. 1979), 594 F.2d 575, 580.

The principle follows a well-settled tenet of contract law: “ ‘Laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as fully as if they had been expressly referred to or incorporated in its terms.’” Norfolk and Western Ry. Co. v. American Train Dispatchers’ Ass’n (1991), 499 U.S. 117, 130, 111 S.Ct. 1156, 113 L.Ed.2d 95, quoting Famers and Merchants Bank of Monroe v. Federal Reserve Bank of Richmond (1923), 262 U.S. 649, 660, 43 S.Ct. 651, 67 L.Ed.2d 1157.

In this case, not only was the 1962 ordinance still in effect at the time Akron and the police and fire unions entered into their most recent collective bargaining agreements, but the CBAs also expressly incorporated other ordinances that expanded upon the 1962 ordinance by specifying the levels of coverage Akron would provide. The Appellants never argued that the 1962 ordinance itself was a contract between the City and the Appellants, contrary to the court of appeals’ assertion. The Appellants never sought to enforce the 1962 ordinance in and of itself, or to establish a private right of action under the 1962 ordinance. Instead, the Appellants consistently argued that the 1962 ordinance was incorporated into the CBAs that followed it, and brought their cause of action for breach of those collective bargaining agreements.

Proposition of Law No. 2: No letter of intent is incorporated into a collective bargaining agreement, so as to be binding on either party, in the absence of specific language in either the body of the collective bargaining agreement itself or in the body of the letter of intent stating that the parties agreed to the language contained in the letter of intent and agreed to the letter’s incorporation into the CBA.

The court of appeals erroneously allowed the City of Akron to unilaterally alter the terms of its collective bargaining agreements with the police officers’ and firefighters’ unions by appending letters of intent to their collective bargaining agreements. These letters stated that the City would not provide City-funded health insurance benefits unless the OP&F failed to provide health care coverage. Unlike the other letters of intent appended to these CBAs, the letters regarding retirees’ health coverage lacked language indicating they were bargained for by the parties. Additionally, the CBAs themselves lack any language indicating that the appended letters of intent were bargained-for. The mere act of providing a “letter of intent” or even a handbook cannot alter the terms of a worker’s contract with his employer. “This, therefore, is a unilateral exchange, not a modification of a contract based on consideration and mutual assent.” Trader v. People Working Cooperatively, Inc. (1994), 104 Ohio App.3d 690, 695, 663 N.E.2d 335.

Furthermore, both the FOP and the Akron Firefighters CBAs contain and specifically incorporate Akron ordinances that specify what Akron will pay for retiree benefits, and the deductibles that Akron will require retirees to meet. Both have clear and specific language setting out how they are to be amended or modified; neither allows the City to unilaterally modify its terms by giving the union leadership a letter.

Instead, the court of appeals looked beyond the four corners of the current collective bargaining agreements, under which the Appellants had filed their breach-of-contract actions, found a letter of intent hinting at some agreement, and incorporated that letter into the current CBAs. This flies in the face of Ohio jurisprudence: “Contract integration provides that where the parties’ intent is sought to be ascertained from several writings, a prior writing will be rejected in favor of a subsequent one if the latter writing contains the whole of the parties’ agreement. If the subsequent agreement is complete and unambiguous on its face, parol evidence is inadmissible to show a contrary intent of the parties.” Trinova v. Pilkington Bros., P.L.C., 70 Ohio St.3d 271, 275, 1994-Ohio-524, 638 N.E.2d 572. The current CBAs constituted the complete agreements between Akron and the Fraternal Order of Police and the Firefighters’ union, and were unambiguous; under Trinova, any writing that appeared with any prior CBA ought to have been rejected.

Conclusion

For the reasons discussed above, this case involves matters of public and great general interest. The Appellants request that this Court accept jurisdiction so that the important issues presented will be reviewed on the merits.

Respectfully submitted,

____________________________________

WARNER MENDENHALL, #0070165

JACQUENETTE S. CORGAN, #0072778

Law Offices of Warner Mendenhall, Inc.

190 N. Union St., Ste. 201

Akron, OH 44304

(330) 535-9160; fax (330) 762-9743

warnermendenhall@hotmail.com

j.corgan@justice.com

and

LARRY D. SHENISE, #0068461

Attorney at Law

190 N. Union St., Ste. 201

Akron, OH 44304

(330) 252-9950; fax (330) 798-7779

LShenise@neo.rr.com

ATTORNEYS FOR APPELLANTS

Certificate of Service

A copy of the foregoing was served via regular U.S. Mail on _____ October, 2006, upon the following:

VINCENT J. TERSIGNI

ASHLEY M. MANFULL

Vorys, Sater, Seymour & Pease

106 S. Main St., Ste. 1100

Akron, OH 44308

And

MAX ROTHAL, Law Director

City of Akron Law Department

161 S. High St., Ste. 202

Akron, OH 44308

_________________________________

One of the Attorneys for Appellant

Appendix