COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69160 and 69208 WILLIAM J. McNEA : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND : : Defendant-Appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-247995 JUDGMENT : Reversed. Final judgment entered in favor of defendant appellant. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: David C. Eisler, Esq. Sharon Sobol Jordan, Esq. 5312 Clifton Blvd. Director of Law Lakewood, Ohio 44107 By: Michael A. Dolan, Esq. Assistant Dir. of Law City of Cleveland, City Hall Room 106 Cleveland, Ohio 44114 -2- HARPER, P. J.: Defendant-appellant, city of Cleveland ("Cleveland"), appeals from the trial court's granting of summary judgment in favor of plaintiff-appellee, William T. McNea ("Mr. McNea"), and denying Cleveland's cross-motion for summary judgment. For the following reasons, we reverse. The following facts were adduced from the record below: Mr McNea was an active police officer who served as a trustee of the Police and Fireman's Disability and Pension Fund Board ("the PFDPF Board") between 1976 and 1986. The PFDPF Board members are responsible, among other matters, for decisions regarding the manner and place of investment within statutory guidelines, qualifications for pensions, the terms of the pension benefits, and the percentage of disability and disability pensions. The PFDPF Board held monthly meetings in Columbus, Ohio. Seminars were also held in places such as New York City, San Diego, Palm Springs, Hawaii, Washington, D.C., and Acapulco. The board paid for Mr. McNea's travel and lodging expenses for both the monthly meetings and seminars. Mr. McNea did not receive overtime compensation for his attendance at the monthly meetings and seminars. Prior to Mr. McNea's retirement in 1990, he sought to recover unpaid overtime due him by Cleveland. Pursuant to the Collective Bargaining Agreement ("the CBA"), Mr. McNea filed a grievance in 1978 with his union, the Cleveland -3- Police Patrolmen's Association ("the CPPA"), regarding his claim for overtime compensation as well as other claims. Mr. McNea's grievance specifically alleged that Cleveland violated the parties' CBA when Cleveland failed to credit him with the appropriate compensatory time due him for his monthly overnight stays while in attendance at the PFDPF Board meetings and seminars from February 1976 thru 1986. He requested that his time spent for overnight stays out of town be recorded as compensatory time and assessed to his accumulated overtime record. Cleveland's position was that, "No obligation exists on the employer's part to credit grievant with compensatory time with respect to the grievant's board meeting overnight stays." The CPPA took the position that Cleveland wrongfully eliminated a valid and existing past practice based on a long standing overnight pay policy. In addition, the CPPA asserted that Cleveland had to negotiate with the CPPA prior to any modification of such past practices. The arbitration award, in August of 1979, states as follows: AWARD AAA Case No. 53-39-0372-78, parties' Grievance No. 78- 32, dated June 30, 1978, filed by W.J. McNea is hereby: 1. Denied as it relates to the Employer's unilateral right to modify its existing overnight pay policy (which was asserted by the Union to be a past practice and, therefore, requiring joint negotiations before management could alter the same). 2. Sustained with respect to the grievant's claim for proper compensatory time book credits in connection with all Board overnight stays from and including February, -4- 1978 until the date that the joint overnight pay policy discussions are held as directed in Grievance No. 78-18. 3. To the extent other bargaining unit members were caused to stay overnight in connection with such indirect police work as training schools and/or Board attendance and who had; prior to February, 1978 received compensatory time shall receive such compensatory time from the date such credits were eliminated by management until the date that the joint overnight pay policy discussions are held as directed in grievance No. 78-18. After Mr. McNea's retirement, he filed another grievance, pursuant to the CBA, and identified the central issue as, "whether or not Cleveland failed to account for accumulated benefits due to the grievant on his retirement." In this proceeding, the CPPA's position was that Cleveland improperly denied reimbursement to Mr. McNea for his accumulated benefits when the CPPA submitted the proper documentation in support of his claim. Moreover, the CPPA contended that the previous arbitration award provided support for Mr. McNea's claim for entitlement to overtime pay. Cleveland maintained that the grievance was not timely filed; the board overtime issue was outside the arbitrator's authority under the arbitration clause in the grievance procedure; and finally, Mr. McNea received all the benefits that were due him. The 1991 award analyzed the August 1979 arbitration award. The 1991 arbitration award states, in pertinent part, as follows: Neither of the August 20, 1979 awards nor anything in the present record indicates that the claims decided in those awards depended upon or were compelled by a statutory source. Neither do the awards reflect what limits, if any, were imposed on the arbitrator's authority by the then applicable CBA. However, the absence of these indications is not significant. Regardless of whether CBA limits -5- circumscribed the arbitrator's powers on August 20, 1979, the management could have paid voluntarily the type of claims in issue then (and now) if it chose to do so. And, from the two decisions and the supporting discussions by the then arbitrator, it is clear that he was deciding only that a change in the overtime policy management had been following could not be instituted before discussion between the parties. The statutory/arbitral authority limit question, now in issue, was not decided. This conclusion is buttressed by the fact that the arbitrator's award of credit for compensatory time concerned only by the City's unilateral change of policy and covered only the period from the stopping of the credit until the date of the parties' discussion of the management policy change. The limits on an arbitrator's authority in the present CBA, Article XXII(45) Step 4, p. 30, are reasonably specific: ... in reaching his decision, the arbitrator shall have no authority (1) to add or subtract from or modify in any way any of the provisions of this contract, (2) to pass upon issues governed by law, (3) to make an award in conflict with law. Because the compulsory payment of the category of overtime in question implicates and is governed by state law, the CBA takes away the power of this or any other arbitrator to decide the overtime issue presented. In addition, a decision on the issue would enter an area not mentioned at all by the current contract. Therefore, a judgment on the issue, either way, would add a dimension to the contract it does not now have -- thus breaching another of the contractual limits on the arbitrator's authority. It is concluded that if the claim has validity, it must be established in another forum. This one has no jurisdiction. Accordingly, the fourth claim of the Grievant for 2580 overtime hours for attendance at Pension Board and seminar meetings is denied because the remedy sought is outside the Arbitrator's authority. -6- The arbitration award granted Mr. McNea (1) seventy-nine (79) days furlough time; (2) four days of holiday pay; and (3) five days withdrawn from Mr. McNea's time sheets; but denied the claimed overtime spent at pension board and seminar meetings. Subsequently, Mr. McNea filed a complaint for money and other relief in the Court of Common Pleas of Cuyahoga County alleging: (1) as a result of his attendance at the PFDPF Board meetings, he was entitled to two thousand four hundred and fifty (2,450) overtime hours, for which he was entitled to compensation upon retirement; (2) the incorrectly arbitrator found that he lacked jurisdiction to hear this claim for 2,450 hours as it was a matter of state law, outside the terms of the collective bargaining agreement between the city of Cleveland and the CPPA; (3) his cause of action was permitted under R.C. 742.08; and (4) he is entitled to judgment for the sum of $59,731.95 plus interest from the date of his retirement. Cleveland answered and denied, in part, Mr. McNea's claims. Cleveland admitted that an arbitrator denied Mr. McNea's claim for 2,450 active hours for his attendance at pension board and seminar meetings. Cleveland also admitted that the arbitrator found that he had no jurisdiction over the claim as the remedy sought by Mr. McNea was outside the arbitrator's authority. Mr. McNea filed a motion for summary judgment asserting that he was entitled to overtime credit for hours he spent while serving as a trustee of the board. He relied on three theories in support of his argument: first, he was entitled to compensatory time -7- pursuant to R.C. 742.08(A); second, that the 1979 arbitrator's award addressed the issue of overnight pay for board service and the statute and the arbitration rulings remain in force; third, he was entitled to compensatory time by operation of the arbitration award and R.C. 4117.10(A). Mr. McNea attached an affidavit in support of his motion for summary judgment. The trial court granted Mr. McNea's motion for summary judgment, but did not specify an amount of damages. Cleveland appealed the trial court's final judgment entry to this court. This appeal was dismissed sua sponte pursuant to App.R. 4. This court assigned No. 68216 to this appeal. Subsequently, Cleveland filed a motion for relief from judgment pursuant to Civ.R. 60(A) and (B). The trial court denied this motion and Cleveland timely filed a notice of appeal to this court. Cleveland filed a cross-motion for summary judgment and submitted the affidavit of Mr. James Dunn in support of its motion for summary judgment. Cleveland asserted that it was entitled to summary judgment as a matter of law. First, R.C. 742.08 did not support a claim of entitlement to additional compensation. Second, Mr. McNea did not suffer from any type of loss or penalty as a result of his board activity. The trial court granted Mr. McNea's motion for summary judgment and denied Cleveland's cross-motion for summary judgment. Shortly thereafter, the trial court journalized the following entry: -8- Deft's motion to vacate denied, Judgment of October 14, 1994, granting plaintiff's motion for summary judgment in the amount of $59,731.95 with interest at 10% from July 1, 1990 is hereby affirmed. OSJ Final. Vol. 1861, Pg. 346. Cleveland timely appeals from the trial court's judgment. Appellant raises the following three assignments of error for this court to review: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN INTERPRETING R.C. 742.08. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT SINCE GENUINE ISSUES OF MATERIAL FACT REMAINED FOR RESOLUTION AT TRIAL. III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B). In the first assignment of error, Cleveland attacks the trial court's granting summary judgment in favor of Mr. McNea. Essentially, Cleveland charges that the trial court erred when it interpreted R.C. 742.08 and granted summary judgment in favor of Mr. McNea. Mr. McNea counters that Cleveland is not entitled to challenge the trial court's granting of summary judgment in his favor, because he submitted complete and uncontroverted evidence demonstrating damages in the amount of $59,793.00. Moreover, Mr. McNea takes the position that the statutory language contained in R.C. 742.08 does not prohibit the PFDPF Board members from receiving overtime compensation for attendance at PFDPF functions. With the relative positions of the opposing parties set forth, we turn to the gravamen of appellant's first assignment of error. -9- The issue germane to this assignment is whether the trial court erred when it concluded no genuine issue of material fact remained pending for litigation concerning Mr. McNea's claim that he was entitled to overtime compensation pursuant to R.C. 742.08 In support of its cross-motion for summary judgment, Cleveland submitted the affidavit of Cleveland Police Sergeant James Dunn, who was assigned to the personnel office of Chief of Police for Cleveland. In paragraph two, he averred that: 2. Between 1978 and 1983 plaintiff was required and did make written requests to the City to attend meetings and seminars of the police and Firemen's Disability and Pension Board ("Board"). (See Exhibits "A-1" and A-2"). He was allowed to attend all such meetings and seminars. On almost every occasion, however, plaintiff was informed that he would not be entitled to overtime compensation for his attendance at such events. (See Exhibit "A-2"). Although plaintiff did not receive overtime compensation for such events, he did receive his regular rate of pay when he attended the Board's meetings and seminars. Between 1984 and 1986, plaintiff was assigned to the position of Secretary of Police and did not make any written requests to attend the Board's meetings and seminars although he continued to go to them. Again, he did not receive any overtime credit for this attendance, but he was paid his regular rate of pay for such time. Civ.R. 56 provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate -10- litigation and to avoid a formal trial when there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate when the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 15 Ohio St.3d 200. The granting of summary judgment is only appropriate if there is no genuine issue of material fact and reasonable minds can come to but one conclusion which is adverse to he nonmoving party. Toledo Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198. The nonmoving party must produce evidence on any issue for which that party bears the production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Section 742.08(A) of the Ohio Revised Code provides as follows: The members of the board of trustees of the police and firemen's disability and pension fund shall serve without compensation, but shall be reimbursed for their necessary expenses incurred in the performance of their official duties. An employee member of the board shall suffer no loss or penalty whatsoever because of absence from his regular employment while engaged in official duties as a member of the board. Mr. McNea, in his motion for summary judgment, cited R.C. 742.08 and relied on the August 20, 1979 arbitration award to support his contention that he was entitled to summary judgment as a matter of law. -11- The language in R.C. 742.08 is clear: "[t]he member of the board of trustees *** shall serve without compensation, but shall be reimbursed for necessary expenses in the performance of the official duties." Furthermore, a member of the board shall "suffer no loss or penalty ***." Upon a review of R.C. 742.08, in its entirety, we conclude that R.C. 742.08 does not provide a cognizable claim for overtime compensation. The unequivocal language of the statute precludes a claim of entitlement to overtime compensation as a result of Board activity. To be entitled to judgment as a matter of law on his claim of compensation pursuant to R.C. 742.08, Mr. McNea had to produce evidence demonstrating: (1) he suffered from some type of loss or penalty as a result of his board activities; and/or (2) he was not reimbursed for necessary expenses incurred in the performance of his official duties as a board member. In the case herein, Cleveland offered evidence demonstrating that no genuine issue of material fact remained pending for litigation, because (1) Mr. McNea received his regular rate of pay while he was engaged in official duties as a member of the board; (2) he did not suffer from any type of loss or penalty as a result of his official board duties; and (3) Mr. McNea was informed that he would not be entitled to additional overtime compensation. Given the foregoing, Cleveland's proposition of law that Mr. McNea was not entitled to summary judgment has credence. Reasonable minds could come to but one conclusion that pursuant to -12- R.C. 742.08, Mr. McNea was not entitled to overtime compensation as a result of his activity as a PFDPF Board member. Similarly, Mr. McNea's second contention that he is entitled to summary judgment as a result of the August 29, 1979 arbitration award lacks merit. A review of the August 29, 1979 arbitration award indicates that the award which sustained Mr. McNea's grievance with respect to compensation for overnight stays was not based on R.C. 742.08. The August 1979 arbitration award focused on the propriety of Cleveland's unilateral change of its management policy given the terms in the CBA in force at the time. Consequently, Mr. McNea erroneously relied on the August 1979 arbitration award to support his contention that the trial court did not err when it granted summary judgment in his favor. Pursuant to Civ.R. 56, reasonable minds could come to but one conclusion that Mr. McNea was not entitled to overtime compensation pursuant to R.C. 742.08 when he did not suffer any loss or penalty as a result of his absence from his regular employment while engaged in board activities. Accordingly, appellant's first assignment of error is sustained and the trial court's judgment entry of October 14, 1994 and the subsequent judgment entry modifying the October 14, 1994 judgment entry are reversed and vacated, respectively. In Cleveland's second assignment of error, Cleveland submits that the trial court erred when it construed R.C. 742.08 to permit Mr. McNea to be awarded overtime compensation. In light of the -13- disposition of Cleveland's first assignment of error, this assignment of error is moot pursuant to App.R. 12(A). Cleveland, in its third assignment of error, submits that Mr. McNea suffered no penalty from his regular employment while engaged in official duties as a member of the board. Given our disposition of Cleveland's first assignment of error, this assignment of error is moot pursuant to App.R. 12(A). Judgment reversed and final judgment entered in favor of Cleveland. -14- It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas 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. DIANE KARPINSKI, J., AND TIMOTHY MCMONAGLE, J., CONCUR. PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .