Court rules in favor of laid-off worker

Staff report

COLUMBUS

The Ohio Supreme Court has ruled in favor of laid-off former Warren city Service Operations Director Frank M. Tempesta in his bid to be rehired to a similar job to the one he previously held.

Tempesta sought to be rehired last summer, when Dave Mazzochi, operations superintendent, retired.

The court said Wednesday that Tempesta was eligible to be recalled from layoff July 1, 2010, to fill the superintendent position. Instead, the city appointed Pat Calvey.

Tempesta filed a mandamus action with the state’s top court July 1, 2010, asking to be brought back from layoff as operations superintendent. Operations manager and operations superintendent are similar positions.

The Supreme Court refused to order back pay because Tempesta’s legal action failed to indicate the exact amount of money he believes he should receive, the ruling says.

Mayor Michael O’Brien said the city will be contacting Tempesta to determine whether he still wants the operations director position. If he does, the city will give it to him. Calvey and others below him would be demoted, O’Brien said.

The job Tempesta held until 2009 — operations director — paid $39.60 per hour, O’Brien said. Operations superintendent pays $32.93 per hour. Operations manager was left vacant when Tempesta was laid off, O’Brien said, and it will remain vacant.

One of the unusual aspects of the court’s ruling, O’Brien said, is that Tempesta was a nonunion employee as operations director, but the operations superintendent position is a union job.

Tempesta worked for the city from 2000 until 2009 but was among dozens of city workers laid off when the city had financial difficulties trouble in 2008.

Tempesta filed suit at the time of the layoff, arguing that at least one other employee should have been laid off before him, even though he had less seniority than two other management employees. Judge Andrew Logan of Trumbull County Common Pleas Court and the 11th District Court of Appeals both disagreed with Tempesta, however.

In the most recent litigation, the court said it disagreed with the city’s position that the collective-bargaining agreement in place for operations workers takes precedence in filling the operations-superintendent job.

The collectivebargaining agreement calls for the senior bargaining unit member of the union to be promoted to operations superintendent when a vacancy occurs.

Ohio law says Tempesta had reinstatement rights for one year from his layoff on July 26, 2009, the supreme court said. Nothing in the collective-bargaining agreement indicated that it took precedence over state law, the supreme court said.

Tempesta is treasurer of the Committee to Elect Jim Graham for mayor.

Graham is one of two Democrats running for Warren mayor. The other is Doug Franklin, city safety-service director.