The Ohio Supreme Court has refused to hear two appeals of Youngstown cases — one sought by the city over a dispute with its firefighters union and the other from a fired employee seeking reinstatement and back pay.

The court rejected both appeals Tuesday.

The court’s vote was 5-2 against the city’s request to overturn a decision requiring it go to binding arbitration with the firefighters union over a grievance on promotions and out-of-rank pay. Chief Justice Sharon Kennedy and Justice Jennifer Brunner were the no votes.

The court also rejected a request by a 6-1 vote, with Kennedy as the only no vote, from Taron Cunningham to hear his case against Youngstown. Cunningham was fired five years ago as the city’s community development agency director and lost an appeal to be reinstated with back pay.

Youngstown wanted the Ohio Supreme Court to overturn a March 13 decision by the 7th District Court of Appeals to permit the city’s firefighters union to engage in binding arbitration over a grievance about promotions and out-of-rank pay. The appeals court had upheld a June 30, 2023, decision by Judge Maureen Sweeney of Mahoning County Common Pleas Court.

The city unsuccessfully argued the union contract requires firefighters to file grievances within two weeks of an occurrence, and it waited several months so the request for an arbitrator was invalid. The courts agreed with the union that the issue is still ongoing, and the arbitration request was timely and proper.

The union issued a Tuesday statement: “Local 312 has said from the outset that the city’s appeal was meritless and a waste of public resources. Hopefully, this type of needless litigation will be avoided in the future.”

Adam Buente, the city’s deputy law director, said while the appeal was pending in front of the Ohio Supreme Court, the union “approved a new tentative contract in late June. The comprehensive agreement settled the issue which was the basis of the potential arbitration and, upon acceptance of the (collective bargaining agreement) by city council and the city’s board of control, will be dismissed by the union’s counsel.”

The two sides have disputed battalion chief positions for nearly five years with the union continuously winning court cases.

The appeals court in December 2021 agreed with the union and the State Employment Relations Board that the city illegally retaliated against the fire union when it agreed to provide upgrades to the department’s radio equipment and then decided to save the money from that expense by eliminating three battalion chief positions through attrition in September 2019.

The appeals court also upheld a common pleas court decision that failing to promote a captain, Chad Manchester, to a vacant battalion chief’s position was contempt of court.

City council in February 2022 voted to restore the three positions, two of which were vacant, to comply with the court.

The city promoted Manchester from captain to battalion chief in March 2022.

But it wasn’t until February 2023 that the city promoted Tim Frease from captain to battalion chief. Sil Caggiano retired in June 2021 as a battalion chief.

The city administration contends a position isn’t vacant until Mayor Jamael Tito Brown determines that to be the case because a civil service test has to be conducted and a candidate selected. A test was held in November 2022.

During the time between Caggiano’s retirement and the appointments, the union says its members should have been paid for working out of rank and deserve back pay. No one actually worked out of rank, but the union says a battalion chief position should have been established shortly after Caggiano retired that would have resulted in lower-ranked firefighters being promoted so its members are entitled to the additional pay.

About a dozen union members are owed about $100,000, according to the union’s lawsuit.

Because back pay wasn’t granted and the promotion wasn’t timely, the union filed a grievance Aug. 4, 2022.

The city denied the grievance four days later on the claim it was untimely and without addressing its merits.

The union responded Aug. 25, 2022, stating the grievance is timely because the city continues to violate the contract “every day that the city refuses to compensate bargaining unit members for time that they should have had in rank through back pay and any other benefits lost as a result of the continuing violation.”

The city again on Sept. 8, 2022, denied the grievance contending it was untimely. Four days later, the union said it was going to take the matter to binding arbitration, but the city refused to participate.

The union filed the lawsuit Dec. 19, 2022, with Sweeney siding with it June 30, 2023, and then the appeals court upholding that decision March 13.

CUNNINGHAM

The 7th District Court of Appeals on March 18 unanimously agreed with the April 18, 2023, decision by Judge John M. Durkin of Mahoning County Common Pleas Court that the city’s civil service commission acted properly when it upheld Cunningham’s March 2020 termination by Brown.

In a May 2 filing with the Ohio Supreme Court, Francis J. Landry, an attorney for Cunningham, wrote that if the appeals court’s decision “is allowed to stand, Ohio’s public employees will be subject to termination without prior notice of the allegations against them and stripped of their due process rights.”

In a May 29 response, Frank H. Scialdone, an attorney hired by the city, wrote: “This case has nothing to do with a legal determination of public or great general interest,” and “Cunningham simply wants this court to re-review this case in which eight decision makers uniformly rejected his claims.”

Cunningham was fired, according to a Dec. 15, 2021, decision by the civil service commission for “a litany of personnel issues involving (him) and his ongoing working relationship with his supervisor, co-workers and outside partners.” There were “disputes or incidents” with 13 former co-workers, including Brown, according to the commission’s ruling.

Cunningham was initially fired March 8, 2019, but that was overturned by Judge Anthony D’Apolito of common pleas court, who ruled Feb. 26, 2020, that the commission made the wrong decision because Brown’s letter to Cunningham didn’t include the reasons for termination as required.

Brown then wrote a new letter March 12, 2020, to Cunningham firing him, retroactive to March 8, 2019, with details that were identical to a letter written Jan. 8, 2019, by T. Sharon Woodberry, Cunningham’s boss at the time, about him to Jeff Limbian, then the city’s law director.

Those letters outlined 26 issues with Cunningham including his “inability to adhere to policy and rules that govern the workplace, incompetence, poor communication skills, misrepresentation of facts in his course of work, general insubordination, temperamental and retaliatory behavior.”

Cunningham, who was paid $74,997.52 annually, filed with the appeals court seeking reinstatement and back pay between March 8, 2019, the date of the first termination letter, and March 12, 2020, the date of the second termination letter.

The appeals court denied Cunningham’s request three times, ruling an administrative appeal was first required.

The civil service commission held a three-day hearing, starting Oct. 25, 2021, to hear Cunningham’s arguments that the second Brown letter was in violation of civil service rules. The commission upheld Cunningham’s termination at a Dec. 15, 2021, meeting, saying he failed to prove his case.

Cunningham then appealed the second termination decision Jan. 13, 2022, in common pleas court.

Durkin ruled April 18, 2023, that the commission’s decision on Dec. 15, 2021, “was based upon reliable, probative and substantial evidence and is in accordance with law and is affirmed.”

Durkin wrote he “determined that the matter was not ripe to consider damages simply because there were procedural deficiencies.”

That led to another appeal that the 7th District rejected March 18 with Cunningham seeking reinstatement and, at minimum, back pay for a little over a year.

Have an interesting story? Contact David Skolnick by email at dskolnick@vindy.com. Follow him on X, formerly Twitter, @dskolnick.