Local 860, AFL-CIO Laborers' International Union of North America v. Kokosing Construction Company, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LABORERS’ INT’L UNION OF ) CASE NO. 1:19CV2000

NORTH AMERICA, LOCAL 860, )

) SENIOR JUDGE

Plaintiff, ) CHRISTOPHER A. BOYKO

)

vs. )

)

KOKOSING CONSTRUCTION ) OPINION AND ORDER

COMPANY, INC., )

)

Defendant. )

CHRISTOPHER A. BOYKO, SR. J.:

Plaintiff Laborers’ International Union of North America, Local 860 (“Local 860”) and

Defendant Kokosing Construction Company, Inc. (“KCC”) both move for summary judgment

arguing that their respective interpretation of a settlement agreement is correct and that the other

party is in breach. The Court finds that the correct interpretation of the settlement agreement is a

mix of the parties’ arguments.

However, the Court does find that KCC breached the settlement agreement. Therefore,

the Court GRANTS, IN PART, Local 860’s Motion for Summary Judgment (Doc. 19) and DENIES

KCC’s Motion for Summary Judgment (Doc. 18). Since damages based on the Court’s

interpretation of the settlement agreement do not align with either parties’ interpretation, the

Court DENIES AS MOOT KCC’s Motion to Strike the Declaration of Attorney Guarino (Doc. 25)

and ORDERS the parties to submit a Joint Proposed Schedule moving forward by 12:00PM,

October 6, 2021.

I. BACKGROUND FACTS

Local 860 is the local affiliate of the Laborers’ International Union of North America (the

“Union”), which covers Cuyahoga, Lake and Geauga Counties, Ohio. KCC is a general

contractor in the heavy-highway construction industry. Both Local 860 and KCC are signatories

to the Heavy Highway Agreement, 2016-2019 (the “CBA”). The CBA governs the employment

conditions between contractors and union members, including specific hiring ratios applicable to

construction projects.

In June of 2016, the Ohio Department of Transportation awarded KCC the I-271 Project.

“The I-271 Project involved the reconstruction of I-271 and I-480 where the two interstates came

together and separating them in an effort to reduce congestion in traffic.” (Mesick Affidavit,

Doc. 18-2, PageID: 214, ¶ 5). In August of 2016, KCC began work on the Project.

Roughly five months later, Local 860 informed KCC that it initiated three grievances for

violations of the CBA’s hiring protocols. Those grievances related to the I-271 Project, the I-480

Project and a Non-Bargaining Unit Grievance. One of the main contentions in the I-271 Project

Grievance was whether KCC qualified as a Traveling Contractor or Local Contractor as defined

by the CBA. Local 860 contended that KCC was a Traveling Contractor and thus required to

hire more local Laborers than out-of-town Laborers.1 For its part, KCC contended it qualified as

a Local Contractor under the CBA.

The above grievances proceeded to arbitration in June of 2018. After an initial hearing,

additional hearings were set and rescheduled. Ultimately, the parties rescheduled a final hearing

for February of 2019.

1 Local 860’s counsel contextualized this hiring dispute during Arbitration as follows: if KCC employed 36 Laborer

Employees, it would have to hire from Local 860’s referral hall: 18 Laborer Employees if it was a Local Contractor;

or 23 Laborer Employees if it was a Traveling Contractor. (See Doc. 19-24, PageID: 5508-09).

In the week leading to the hearing, the parties engaged in settlement discussions.

Anthony Liberatore negotiated on Local 860’s behalf, while Wm. Brett Burgett represented

KCC. The parties ultimately came to a resolution of all three grievances and on February 11,

2019, executed their Settlement Agreement (the “Agreement”).

With their Agreement, the parties amended the hiring procedures set forth in the CBA.

Specifically, the Agreement contains the following key paragraphs:

3. For the 2019 construction season, for each project in Local

860’s jurisdiction, KCC shall employ Laborer Employees

using the following procedure: except for I-271 Project

(ODOT 160218), no less than 50% of KCC’s Laborer

Employees on each project shall be hired through Local

860’s referral hall or shall be members of Local 860. For the

I-271 Project during the 2019 construction season, all of

KCC’s new Laborer Employee hires will be hired through

Local 860’s referral hall. KCC shall transfer out of town

Laborers working on the I-271 Project to projects closer to

their home locals as soon as reasonably practicable.

4. For the 2020 construction season and beyond, for each

project in Local 860’s jurisdiction, KCC shall employ

Laborer Employees using the following procedure: no less

than 50% of the Laborer Employees on each project shall be

hired through Local 860’s referral hall or shall be members

of Local 860.

5. This Agreement is being made on a non-precedential basis

with respect [to] any person or entity other than the Parties.

Moreover, notwithstanding anything in this Agreement to

the contrary, if the hiring ratios or definition of local

contractor in Paragraphs 19 or 20 are modified in any future

statewide Heavy Highway or other agreement, either Party,

at its option, shall no longer be bound by this Agreement.

(Doc. 19-29, PageID: 5852). At the time of the Agreement, the I-271 Project had been underway

for two-and-a-half years. During that time, KCC hired approximately 119 Laborer Employees.

Of those employees, 71 were out-of-town Laborer Employees. Accordingly, there was a ratio of

roughly 60% out-of-town Laborer Employees to 40% Local 860 Laborer Employees.

Local 860 alleges that “immediately after the execution of the Settlement Agreement,”

KCC violated the Agreement by hiring additional out-of-town Laborers onto the Project.

(Liberatore Affidavit, Doc. 19-27, PageID: 5763, ¶ 21). KCC disagreed. This disagreement

caused KCC to file a complaint for Declaratory Relief with this Court on March 1, 2019. (See

Case No. 1:19CV467). However, on August 14, 2019, the Court dismissed the initial Complaint

without prejudice for want of jurisdiction. (Doc. 17, Case No. 1:19CV467).

After swapping parties, Local 860 filed the instant Complaint on August 30, 2019,

alleging KCC breached the Agreement in three ways, discussed more below. (Doc. 1). KCC

filed an Answer and Counterclaim on October 7, 2019, alleging that Local 860 actually breached

the Agreement by unlawfully imposing additional obligations not contained in the Agreement on

KCC. (Doc. 5).

On September 25, 2020, the parties filed cross-Motions for Summary Judgment. (Docs.

18 & 19). Each party opposed. (Doc. 24 & 25). In its Opposition, KCC also moved to strike an

affidavit supporting Local 860’s Motion for Summary Judgment. (Doc. 25). Local 860 opposed

the Motion to Strike (Doc. 26), which prompted KCC’s Reply in Support (Doc. 27). Believing

that the Reply put forth new arguments and new requests for relief, Local 860 requested leave to

file a Sur-Reply and attached a Sur-Reply brief therein. (Doc. 28).

II. PROCEDURAL MOTIONS

Some housekeeping is necessary before proceeding to the merits of the dispute. First,

both parties moved for leave to exceed the page limits in their Opposition. These requests

occurred before the Christmas holiday in 2020 and the Court granted the requests via electronic

communications with counsel. However, the Court’s permission never reached the docket.

Therefore, the Court GRANTS each parties’ request to exceed the page limits in their

Oppositions. (Docs. 22 & 23).

In briefing the Motion to Strike, Local 860 argues that KCC included a new ground for

relief in a footnote in the Reply. Accordingly, Local 860 requested leave to file a Sur-Reply to

address that new ground. The Court agrees with Local 860’s characterization of the footnote and

GRANTS Local 860’s Motion for Leave (Doc. 28). The Court deems the Sur-Reply filed as of

January 26, 2021. (See Doc. 28-1).

III. LAW & ANALYSIS

A. Standard of Review

Summary judgment shall be granted only if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The moving party bears the burden to conclusively show no genuine issue of

material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing Dairy, Inc. v.

Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must either point to “particular

parts of materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other

materials” or show “that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1)(A), (B). A court considering a motion for summary judgment must view the

facts and all inferences in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant presents evidence

to meet its burden, the nonmoving party may not rest on its pleadings, but must come forward

with some significant probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing

Dairy, 39 F.3d at 1347.

This Court does not have the responsibility to search the record sua sponte for genuine

issues of material fact. Betkerur v. Aultmamn Hosp. Ass’n., 78 F.3d 1079, 1087 (6th Cir. 1996);

Guarino v. Brookfield Twp Tr., 980 F.2d 399, 404-06 (6th Cir. 1992). The burden falls upon the

nonmoving party to “designate specific facts or evidence in dispute,” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986), and if the nonmoving party fails to make the necessary

showing on an element upon which it has the burden of proof, the moving party is entitled to

summary judgment. Celotex, 477 U.S. at 323.

The appropriateness of summary judgment depends upon “whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Amway Distrib. Benefits Ass’n v. Northfield Ins. Co., 323

F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).

Plaintiff understands the Agreement to set forth the following hiring procedure: KCC

must (i) transfer all out-of-town Laborers off the Project. That means every out-of-town

Laborer; (ii) replace those transferred Laborers with Laborers hired from Local 860’s referral

hall; and (iii) refrain from bringing in additional out-of-town Laborers to work on the Project

after the date of the Agreement.

B. General Principles of Contract Interpretation

District courts may enforce settlement agreements between parties to a collective

bargaining unit under § 301 of the Labor Management Relations Act. See Retail Clerks Intern.

Ass’n, Local Unions Nos. 128 & 633 v. Lion Dry Goods, Inc., 369 U.S. 17, 28 (1962); Jones v.

General Motors Corp., 939 F.2d 380, 382-83 (6th Cir. 1991). In doing so, courts apply federal

common law with the goal to elucidate the parties’ intentions. Textile Workers Union of America

v. Lincoln Mills of Ala., 353 U.S. 448, 456 (1957); M & G Polymers USA, LLC v. Tackett, 574

U.S. 427, 435 (2015); In re AmTrust Fin. Corp., 694 F.3d 741, 749 (6th Cir. 2012). The best

way to determine the parties’ intentions is to apply the traditional methods of contract

interpretation. AmTrust Fin., 694 F.3d at 749-50.

In applying these traditional methods, courts start with the written instrument itself. Wulf

v. Quantum Chem. Corp., 26 F.3d 1368, 1374 (6th Cir. 1994); Gallo v. Moen Inc., 813 F.3d 265,

273 (6th Cir. 2016) (“The first and best way to divine the intent of the parties is from the four

corners of their contract and from traditional canons of contract interpretation”). In reviewing

the written agreement, courts must interpret the provisions “according to their plain meaning, in

an ordinary and popular sense.” Perez v. Aetna Life Ins., 150 F.3d 550, 556 (6th Cir. 1998).

When that plain “meaning is clear on its face, that meaning controls.” AmTrust Financial, 694

F.3d at 750.

However, if that plain meaning is subject to two reasonable interpretations, then that

provision is ambiguous. Wulf, 26 F.3d at 1376. The question of whether language “is

ambiguous is a question of law that may be resolved summarily.” Int’l Union, United Mine

Workers v. Apogee Coal, 330 F.3d 740, 744 (6th Cir. 2003) (citations omitted). If the court finds

ambiguity, it may consider extrinsic evidence, Wulf, 26 F.3d at 1376, including relevant extrinsic

evidence of the parties’ intent and the meaning of the words that they used. CITGO Asphalt

Refining Co. v. Frescati Shipping Co., Ltd., 140 S. Ct. 1081, 1088 (2020). But again, two

competing reasonable interpretations are necessary before a court finds ambiguity. See Perez,

150 F.3d at 557.

C. Definitions of Laborer Employee and Laborer

Before moving to the contractual obligations at issue, a threshold issue exists of who

qualifies as a “Laborer Employee” under the Agreement. The Agreement does not define the

term. Plaintiff argues that the term Laborer Employee includes every employee working for

KCC that is represented by the Union, including supervisory personnel. Defendant disagrees,

arguing that the Court should focus on the capitalization of the term and refer to the definition of

Employee in the CBA. When doing so, the term clearly excludes supervisory personnel.

At the outset, Paragraph 3 contains two different terms: “Laborer Employee” and

“Laborer.” While neither party clearly addresses this distinction, the use of two different terms

is meaningful. See Gallo, 813 F.3d at 270 (a “difference in language demands a difference in

meaning”). Reading these two different terms to mean the same thing would render either term

superfluous, which courts avoid. See AmTrust Financial, 694 F.3d at 753.

To define each term, the Court refers to the CBA. In resolving the grievances, the

Agreement modified one specific aspect of the CBA — the hiring procedures found in Article II,

Paragraphs 19 and 20. In their Agreement, the parties specifically reserved the right to withdraw

from the Agreement should CBA paragraphs 19 and 20 be modified. (Doc. 19-29, PageID:

5852, ¶ 5). Accordingly, even though the resolution of the underlying obligations does not

directly involve the CBA, reference to the CBA is proper because the CBA still governs the

parties’ underlying relationship. See Jones, 939 F.2d at 382-83.

Turning then to the CBA, the Court easily finds the definition of “Laborer Employee” in

Article II, Paragraph 13. The provision defines “Employees” to:

Not include professional engineering personnel, clerical employees,

time-keepers, superintendents, assistant superintendents, nor any

supervisory personnel, but shall include all other persons employed

by the Contractors in the performance of any of the various classes

of work covered by this Agreement, coming within the jurisdiction

of the Union as set forth in Exhibit A, excepting where a Contractor

finds that he needs an exclusive Laborer foreman.

(Doc. 19-28, PageID: 5781, ¶ 13). Thus, “Laborer Employee” does not include supervisory

personnel.

While the CBA does not define “Laborer,” the last clause in the above definition provides

the Court guidance of Laborer’s meaning. That definition is more expansive than the term

Laborer Employee. (See Doc. 19-28, PageID: 5820, Exhibit B to the CBA: “if, in the opinion of

the Contractor, a foreman is necessary to direct and supervise Laborers working within their

jurisdiction, the foreman shall be a Laborer”). Thus, the Court finds that the term Laborer

includes supervisory personnel.

Accordingly, the Court sets for the following definitions of the terms “Laborer

Employee” and “Laborer”:

“Laborer Employee” means all persons employed by the Contractor

in the performance of the various classes of work covered by the

CBA, except for professional engineering personnel, clerical

employees, time-keepers, superintendents, assistant

superintendents, and supervisory personnel; and

“Laborer” means all persons employed by the Contractor that are

represented by the Union, including supervisory personnel.

D. KCC’s Obligation to Transfer Laborers

While not the first obligation listed in Paragraph 3 of the Agreement, the Court believes it

necessary to address the transfer obligation at the outset. The Agreement requires KCC to

“transfer out of town Laborers working on the I271 Project to projects closer to their home locals

as soon as reasonably practicable.” (Doc. 19-29, PageID: 5852, ¶ 3). And, as set forth above,

this obligation applies to Laborers, the more expansive definition that includes supervisory

personnel.

Both parties agree that this transfer obligation is contingent on the availability of a project

closer to the out-of-town Laborer’s home local. From there, the parties’ interpretation differs.

This difference comes down to two disputes: i) the timing of transfers; and ii) the number of

Laborers KCC must transfer off the Project.

i. Timing of Transfers – “As Soon As Reasonably Practicable”

Local 860 interprets “as soon as reasonably practicable” to impose a 30-day deadline

based on caselaw and certain federal regulations. KCC disagrees, arguing that the phrase

encompasses more consideration than a date certain. According to KCC, many considerations

go into the decision to transfer, including: is there a project available closer to the home local?

Does that project have a position available for the transferred Laborer? Even if yes to both

questions, can KCC afford to transfer this individual Laborer off the Project at this time? How

would this Laborer’s transfer impact the timing of the Project?

The Court finds that “as soon as reasonably practicable” depends on many factors, like

the ones KCC cites. The authority that Local 860 cites related to securities disclosure obligations

and requests for leave under the Family and Medical Leave Act are inapposite. Both situations

involve providing simple notice based on a triggering event, not the transfer of multiple

individuals from one construction project to another.

Moreover, the caselaw concerning the contractual defense of impracticability is not at

issue here. KCC does not defend its actions because it was impractical to transfer Laborers.

Indeed, KCC was actively transferring Laborers throughout 2019. KCC’s defense is more a

rebuttal to Local 860’s onerous timing requirement.

One of Local 860’s cites, however, does provide guidance. In Nat’l Wildlife Fed’n v.

Norton, specifically footnote 12, the court looked to the Federal Highway Administration’s

definition of “practicable” for guidance. 306 F. Supp. 2d 920, 927 n. 12 (E.D. Cal. 2004). That

administration — which is more relevant here than the Department of Labor given the context of

the construction project at issue — defines practicable to mean: “capable of being done with

reasonable natural, social or economic constraints.” 23 C.F.R. § 650.105(k). These “natural,

social or economic constraints” encompass the many factors KCC cited in its understanding of

the Agreement.

Thus, the Court finds that KCC is correct in considering the “natural, social and

economic constraints” of transferring Laborers off the Project to other projects closer to their

home locals. The Agreement does not require KCC to transfer Laborers off the Project by a date

certain. Rather, KCC must act “as soon as reasonably practicable,” which affords KCC

discretion.

ii. Number of Laborers Transferred

For number of Laborers, Local 860 believes KCC is required to transfer all out-of-town

Laborers off the Project, i.e., not a single out-of-town Laborer may remain on the Project in

2019. Again, KCC disagrees, arguing that it did not commit to transfer a certain number of out-

of-town Laborers off the Project, and it certainly did not commit to transfer all out-of-town

Laborers off the Project. Instead, KCC argues that the Court should look at Paragraph 4 of the

Agreement for any number requirement.

The Court finds that the Agreement does not require KCC to transfer every out-of-town

Laborer off the Project for four reasons. First, the provision does not state that KCC must

transfer every out-of-town Laborer off the Project. If the parties intended that result, they would

have contracted for that.

Second, the surrounding paragraphs also lead to the same conclusion. Courts must

construe the text as a whole, giving “effect to all its provisions and to render them consistent

with each other.” Gallo, 813 F.3d at 270; see also Florida Canada Corp. v. Union Carbide &

Carbon Corp., 280 F.2d 193, 195-96 (6th Cir. 1960) (“A contract cannot be disjointed or

particular parts separated from the balance, as it is necessary to consider all of the provisions of a

contract in order to determine the meaning of any particular part as well as the meaning of the

whole document”). The first portion of Paragraph 3 imposes a 50% ratio on KCC to employ

Laborer Employees on all other projects than the I-271 Project. Paragraph 4 then imposes the

same 50-50 ratio on all projects (including the I-271 Project) in 2020. This shows that the parties

certainly knew how to impose number requirements on KCC’s employment practices. Again, if

the parties desired KCC to transfer 100% of Laborers off the Project, they could have

specifically agreed to that.

Third, the context of the dispute further supports the finding that KCC did not need to

transfer all Laborers off the Project. Remember, this Agreement came to fruition to resolve a

grievance that KCC employed too many out-of-town Laborers and not enough local Laborers

under the CBA. But even under the strictest interpretation of the CBA, contractors are never

required to employ 100% local Laborers to support their projects.

Finally, Local 860’s position would produce an absurd result. Courts readily read

contract provisions to produce plausible results. Cassidy v. Akzo Nobel Salt, Inc., 308 F.3d 613,

618 (6th Cir. 2002), and Local 860’s reading is implausible. As mentioned, the Agreement

specifically allows KCC to have out-of-town Laborers on the Project in 2020. Transferring

every out-of-town Laborer off the Project just to rehire them back in 2020 defies common sense.

Accordingly, the Court will not enforce Local 860’s unreasonable interpretation of the transfer

obligation.

iii. Transfer Obligation and Summary Judgment

Thus, the Court holds that the transfer obligation is more in line with KCC’s

interpretation of the Agreement. But this does not mean KCC is in the clear. While KCC does

not have to transfer every Laborer off the Project, that does not mean KCC could wait until the

end of 2019 in order to satisfy the 50-50 requirement for 2020. To the contrary, KCC must

transfer those Laborers off the Project “as soon as reasonably practicable.”

KCC repeatedly references the 39 Laborers it transferred off the Project in 2019. While

that is true, most of those transfers came in November and December of 2019, when the Project

was presumably wrapping up for the Winter. Moreover, of those 39 Laborers, many were out-

of-town Laborers that KCC brought onto the Project after the date of the Agreement, which is

problematic for the reasons discussed below. Finally, Local 860 highlights various projects that

could have accepted out-of-town Laborers from the Project. To rebut these arguments, KCC

relies on the arguments of counsel, with no factual averments to support them. (See Doc. 25,

PageID: 48220-21).

Thus, material facts remain in dispute as to whether KCC complied with its obligation to

transfer out-of-town Laborers off the Project as soon as reasonably practicable.

E. KCC’s Obligation to Hire Laborer Employees

Next, the Agreement requires that, “[f]or the I271 Project during the 2019 construction

season, all of KCC’s new Laborer Employee hires will be hired through Local 860’s referral

hall.” (Doc. 19-29, PageID: 5852, ¶ 3).

Local 860 argues this provision imposes dual obligations on KCC. First, KCC must

replace those transferred out-of-town Laborers with Local 860 members. And second, KCC

must refrain from staffing the Project with out-of-town Laborer Employees, i.e., KCC may not

transfer out-of-town Laborer Employees to the Project after the date of the Agreement.

KCC disagrees with this interpretation. First, KCC argues it has discretion and is not

required to replace those transferred Laborers with Local 860 referrals. Second, KCC argues that

the word “new” is important and applies only to those “new” hires to KCC. Thus, KCC is not

prohibited from recalling employees whom it previously hired, even if they are out-of-town

Laborer Employees.

As an initial matter, the Court agrees with KCC that this obligation does not impose the

positive requirement that KCC replace each transferred Laborer with a Local 860 Laborer

Employee. Indeed, if KCC desired to leave those transferred positions open, it could do that.

Again, KCC has certain economic constraints that it may consider when making hiring decisions.

(See also, the CBA, Doc. 19-28, PageID: 5782, ¶ 14: “the Contractor shall be free to select the

employees whom he desires to employ, subject to the terms of the [CBA].”). However, once

KCC decided to staff the Project after the date of the Agreement, this obligation becomes

important. Ultimately, the Court disagrees with KCC and finds that this provision applies to

Laborer Employees new to the Project rather than new to KCC.

Start with the language of the provision itself. The clause “For the I-271 Project during

the 2019 construction season” modifies KCC’s new hires. It contextualizes the requirement, as

well as restricts the requirement specifically to the Project. Because of that, any new hire must

come through Local 860’s referral hall.

KCC’s own understanding of ‘hire’ further supports this construction. In its briefing,

KCC indicated that it “hired approximately 119 Laborer Employees to perform work on the

Project.” (Doc. 18, PageID: 191; Doc. 25, PageID: 48200) (emphasis added). Of these 119

Laborer Employees, many previously worked for KCC. In briefing then, KCC refers to a hiring

decision to the Project and not to the company.

Noticeably absent from the Agreement is the ability to recall Laborer Employees who

previously worked for KCC. To circumvent this, KCC argues that the Agreement did not alter

the CBA provision allowing it to recall employees. But KCC is wrong. In fact, that is exactly

what the Agreement did—modify Paragraphs 19 and 20 of the CBA to set forth a new hiring

procedure for the projects identified in the Agreement. The ability to recall that KCC relies on is

contained within Paragraphs 19 and 20, which again, were modified by the Agreement. Similar

to the transfer obligation above, the Court will not read into the Agreement the ability to recall as

KCC wants.

Even if the Court were to find KCC’s interpretation of this provision reasonable and thus

find the provision ambiguous, the contemporaneous evidence further supports the Court’s

finding. While each party presents their own interpretation of the clause,2 the Court finds that

the best evidence is contained within the parties’ negotiations leading to the Agreement. There,

the Court finds that KCC attempted to add the ability to recall employees into the Agreement.

(Doc. 19-31, PageID: 5859).3 Local 860 struck that ability. (Doc. 19-32, PageID: 5862, stating

that “[y]our view that you can staff a project with any person Kokosing has hired in the last year

2 Liberatore Affidavit, Doc. 19-27, PageID: 5763, ¶ 23; Burgett Affidavit, Doc. 25-11, PageID: 48362, ¶¶ 14, 15.

3 KCC attempted to add the following ability: “KCC can recall any (1 or more; not limited to 1) Laborer Union

member in good standing, who has worked for KCC during the past year; and if KCC thereafter needs additional

help, KCC will obtain at least 50% of such additional employees through Local 860.” (Doc. 19-31, PageID: 5859).

without regard to any ratio does not make any sense to us”). KCC agreed and ultimately, the

final Agreement did not contain the recall ability that KCC now claims exists.

Accordingly, both the plain language of the Agreement and the evidence of the parties’

negotiations support the Court’s finding that KCC could not recall out-of-town Laborer

Employees to staff the Project after the date of the Agreement. Since it is undisputed that KCC

hired out-of-town Laborer Employees to the Project after the date of the Agreement, the Court

holds that KCC breached the Agreement.

F. KCC’s Motion for Summary Judgment

In its Counterclaim, KCC asserts Local 860 breached the Agreement by imposing

additional obligations not contained in the Agreement on KCC. KCC moved for summary

judgment on this claim (Doc. 18) and Local 860 opposed (Doc. 24).

A necessary requirement for a breach of contract claim is that the party alleging a breach

performed its obligations under the contract. See Georgetown of the Highlands Condominium

Owners’ Assoc. v. Nsong, 113 N.E.3d 192, 201 (Ohio Ct. App. 2018). KCC cannot satisfy this

requirement. As the Court held above, KCC breached the Agreement by hiring out-of-town

Laborer Employees onto the Project after the date of the Agreement. The Court thus agreed with

Local 860’s interpretation in that regard. Therefore, the Court does not find that Local 860 was

trying to impose additional obligations onto KCC. Even under KCC’s misguided interpretation

of the clause, the Court finds it still breached the Agreement.4

Since KCC cannot show it performed its obligations under the Agreement, the Court

DENIES KCC’s Motion for Summary Judgment. (Doc. 18).

4 See Doc. 18-8, KCC’s transferred Laborer Employee list, which sets forth the original hire date of KCC’s Laborer

Employees. Specifically, KCC hired three out-of-town Laborer Employees (Travis Brown, James Jarrell and Travis

Sims) for the first time in 2019 and assigned them to work on the I-271 Project. Thus, even under KCC’s

understanding of its obligations, it still violated the Agreement.

G. Motion to Strike

In its Opposition to Summary Judgment, KCC moved to strike the Declaration of

Attorney Guarino. (See Doc. 25, PageID: 48225). According to KCC, Guarino’s Declaration

should be stricken because it asserts conclusions of law and ultimate facts for which he had no

personal knowledge. Attorney Guarino opposed the motion, arguing that his Declaration is

proper because it sets forth Local 860’s understanding of the Agreement and is merely provides a

damages calculation. (Doc. 26). In its Reply, KCC argues that this is improper and that the

Declaration does not comply with Rule 56. Moreover, with his Declaration, Attorney Guarino

improperly inserts himself as a fact witness, violating ethical rules for attorneys. (Doc. 27).

Guarino filed a Sur-Reply contesting this accusation and finding it improper that KCC is moving

to disqualify him as counsel for Local 860. (Doc. 28-1).

While the Court understands KCC’s objection to Guarino’s Declaration, the Court need

not address the dispute at this time. As mentioned, Guarino’s Declaration is relevant for

calculating damages according to Local 860’s understanding of the Agreement. Since that

understanding is incorrect in part, Guarino’s damage calculation is unhelpful at this juncture.

Therefore, the Court DENIES AS MOOT KCC’s request to strike. (Doc. 25).

IV. CONCLUSION

The Agreement reflects the parties’ attempt to refine KCC’s hiring obligations of Local

860 members. While certain material facts remain in dispute, the Agreement’s plain meaning

does make it clear that KCC breached the Agreement.

Accordingly, the Court GRANTS, IN PART, Local 860’s Motion for Summary Judgment

(Doc. 19); DENIES KCC’s Motion for Summary Judgment (Doc. 18); and DENIES AS MOOT

KCC’s Motion to Strike (Doc. 25).

IT IS SO ORDERED.

s/ Christopher A. Boyko

CHRISTOPHER A. BOYKO

Senior United States District Judge

Dated: September 30, 2021