{¶ 33} I must respectfully dissent from the majority decision herein.
{¶ 34} Appellants rely on the judgment entry dated November 8, 2002. That entry ruled that the Leon-Games letter dated December 12, 1996, "rendered pursuant to Article 17 of the Collective Bargaining Agreement which is the subject of this case is final, conclusive and binding on the Defendant City." (Emphasis added.) Article 17 of the applicable collective bargaining agreement ("CBA") addressed the ability of the city to change an employee's rate of pay if his or her job description is altered. As such, the CBA in effect on December 12, 1996, was the CBA covering the period January 1, 1994, through December 31, 1996. The record reflects, in May 1997, that a subsequent CBA was entered into covering a three-year period from January 1, 1997, through December 31, 1999. Quite simply, a letter dated December 12, 1996, could not have been rendered pursuant to a CBA that had yet to be ratified. The "final, conclusive and binding" effect on the city applied only to the CBA in effect at that time, and only until some subsequent, potentially modifying agreement between the parties went into effect.
{¶ 35} I am in agreement with the December 11, 2006 entry of the trial court. The trial judge in case No. 95-CV-300 concluded, and the trial judge in this case re-affirmed, that "as of the effective date of the successor CBA (January 1, 1997), the rates of pay set forth therein `replaced and took precedence over' the rates of pay set forth in the earlier agreement between Leon-Games and Plaintiff." This is not only a correct statement of law, but frankly the only analysis that makes sense.
{¶ 36} In this case, there is no dispute that appellants are members of the collective bargaining unit. There is a stipulation that the rates of pay and job classifications that pertain to them are incorporated in the CBA effective January 1, 1997. They are, under the law, parties to the agreement that was ratified by the members of AFSCME Local 74.
{¶ 37} In order to accept appellants' argument, there would have to be an unwritten "exception" to the plain terms of the 1997 CBA. That exception, offered by appellants, is the Leon-Games letter dated December 12, 1996. If appellants understood the Leon-Games letter to be binding and effective with regard to their rates of pay and job classifications, this letter, or its terms, should have been clearly and unequivocally incorporated into the January 1, 1997 CBA. However, neither the Leon-Games letter nor its terms were incorporated into the *Page 76 1997 CBA. To the contrary, the 1997 CBA clearly states: "This Agreement supersedes, as of January 1, 1997, the Agreement effective January 1, 1994." The Leon-Games letter, as discussed above, was rendered pursuant to the January 1, 1994 CBA. To suggest that it supersedes a subsequent CBA that clearly states otherwise is not fair to the city.
{¶ 38} One should be able to look at the four corners of the 1997 CBA and determine the outcome of collective bargaining as to each employee's compensation and job classification as of the effective date of the agreement. The only way to modify this CBA should be a subsequent agreement, such as a letter dated after the effective date of the CBA. To hold the city responsible for any "side agreements" made prior to a clearly drafted and negotiated CBA would be contrary to law.
{¶ 39} The trial court, based on its December 11, 2006 ruling, makes it clear that it did not intend to address the issue of the "term" of the binding effect of the Leon-Games December 12, 1996 letter in its November 8, 2002 entry. In reviewing the recommendation of the magistrate regarding the evidence presented, the "term" never appeared to be at issue. It would stand to reason that the trial court entry did not address it specifically. Apparently the appellee also applied the same interpretation as the trial court. Therefore, there would have been no reason for the appellee to appeal that decision. If there was a misconstruction on anyone's part regarding the import and intent of the November 8, 2002 judgment, it appears to be on the part of appellants.
{¶ 40} Therefore, at the risk of prolonging this case further, but in the interest of fairness, the trial court on remand should be permitted to vacate or clarify the November 8, 2002 order, specifically addressing the position of the trial court with regard to the enforceable "term" of the Leon-Games December 12, 1996 letter. This action would put both parties in a position to either appeal or accept the result.
{¶ 41} Therefore, I respectfully dissent from the majority in this case and feel the judgment of the trial court should be affirmed. *Page 77