Cleveland Metroparks System,
Appellant-Appellant,
vs.
Ohio Bureau of Employment Services et
al.,
Appellees-Appellees.
No. 93APE12-1748
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
641 N.E.2d 750, 94 Ohio App. 3d 750
May 12, 1994, Rendered
APPEAL from the Franklin County Court
of Common Pleas.
COUNSEL
Baker & Hostetler, Elliot S.
Azoff and Robert C. Petrulis, for appellant.
Lee Fisher, Attorney General, and Stefan J. Schmidt, for
appellees.
JUDGES
TYACK, J., PETREE and CLOSE, JJ., concur.
AUTHOR: TYACK
OPINION
TYACK, J.
On October 17, 1990, Cleveland Metroparks System ("Metroparks")
filed an application with the Ohio Bureau of Employment Services
("OBES") for continuation of and expansion of its seasonal
classification for certain employment operations.
Metroparks is a metropolitan park district and a political
subdivision of the state of Ohio. As well as operating a
multi-county park system, Metroparks owns and operates the
Cleveland Metroparks Zoo.
In its application, Metroparks sought a grant by OBES for the
continuing classification of three of its operations, the "Swimming
Season," "Golf Course Season" and "Zoo, Recreation, and Nature
Education Season," as seasonal employment.
In early 1991, Metroparks again applied for seasonal
classifications and, on May 10, 1991, the administrator of OBES
denied the application. On June 4, 1991, Metroparks filed an
application for reconsideration of the administrator's
determination. This was denied on October 11, 1991. Metroparks
appealed the administrator's determination to the Unemployment
Compensation Board of Review ("Board"). A referee was appointed,
and a hearing was held on October 20, 1992. The referee prepared a
report and the Board then affirmed the administrator's
determination denying a seasonal classification, determining that
under the new R.C. 4141.33(A), Metroparks' operations were not
substantially all in a seasonal industry. Metroparks appealed to
the Franklin County Court of Common Pleas, which found that the
Board's decision was supported by reliable, probative and
substantial evidence. Metroparks has now appealed to this court,
assigning one error for our consideration:
"The Court of Common Pleas erred in affirming the decision of the
Unemployment Compensation Board of Review denying seasonal
employment classifications for Cleveland Metroparks System's
seasonal operations and in finding that the decision of the Board
was supported by reliable, probative, and substantial evidence and
was in accordance with law. (Decision of the Court of Common Pleas
dated November 19, 1993 and Entry dated December 2, 1993, copies of
which are included herein as Exhibits A and B, respectively.)"
Appellant's primary argument on this appeal centers around an
issue of law -- -- namely, the correct interpretation of R.C.
4141.33(A) which addresses seasonal classification. Prior to the
Board's decision here, appellant had had three of its operations
classified as seasonal. The significance of classification is that
if an operation has a seasonal classification from OBES
(hereinafter "appellee"), then the seasonal employees are not
entitled to unemployment compensation when their jobs terminate at
the end of the season. By contrast, if an operation has not been
given a seasonal classification, then seasonal employees are
eligible for unemployment compensation at the end of the season. In
1989, R.C. 4141.33(A) was amended, and this amendment led the Board
to conclude that appellant's seasonal operations did not meet the
requirement(s) under R.C. 4141.33(A).
Prior to the 1989 amendment, R.C. 4141.33(A) provided, in
pertinent part:
"'Seasonal employment' means employment of individuals hired
primarily to perform services in an industry which because of
climatic conditions or because of the seasonal nature of such
industry it is customary to operate only during regularly recurring
periods of forty weeks or less in any consecutive fifty-two weeks.
'Seasonal employer' means an employer determined by the
administrator of the bureau of employment services to have seasonal
employment in a seasonal industry. Any employer who claims
to have seasonal employment in a seasonal industry may file with
the administrator a written application for classification of such
employment as seasonal." (Emphasis added.)
The language emphasized above is the language which was amended.
The remaining language above was not changed. The new version of
R.C. 4141.33(A) provides:
"* * * 'Seasonal employer' means an employer determined by the
administrator of the bureau of employment services to be an
employer whose operations and business, with the exception of
certain administrative and maintenance operations, are
substantially all in a seasonal industry. * * *"
Appellee found that appellant's operations and business were not
substantially all in a seasonal industry because out of a total of
one thousand twelve employees in 1990, only five hundred nine were
seasonal employees. Appellant contends that appellee misinterpreted
the language in R.C. 4141.33(A) and that the change in the
definition of "seasonal employer" did not affect its eligibility
for seasonal classifications. Appellant bases this argument on one
sentence in the statute which was not amended. This sentence, in
R.C. 4141.33(A), provides:
"* * * Any employer who claims to have seasonal employment in a
seasonal industry may file with the administrator a written
application for classification of such employment as seasonal. * *
*"
Appellant argues that this language indicates that a seasonal
classification is not dependent upon whether or not one is a
"seasonal employer," but upon whether an employer has "seasonal
employment" in a "seasonal industry." We disagree. While the
sentence does indicate that an employer who claims to have seasonal
employment in a seasonal industry may file with
the administrator, it does not provide the basis for the
administrator to ultimately grant a seasonal
classification. Such bases are found elsewhere in the statute.
R.C. 4141.33(A) goes on to state:
"* * * The administrator shall
determine, after investigation, hearing, and
due notice, whether the industry is seasonal and, if seasonal,
establish seasonal periods for such seasonal employer. Until such
determination by the administrator, no industry or employment shall
be deemed seasonal. When the administrator has determined
such seasonal periods, he shall also fix the proportionate number
of weeks of employment and earnings required to qualify for
seasonal benefit rights in place of the weeks of employment and
earnings requirement stipulated in division (R) of section 4141.01
and section 4141.30 of the Revised Code, and the proportionate
number of weeks for which seasonal benefits may be paid. The
administrator may adopt rules for implementation of this section."
(Emphasis added.)
The above language, in particular the emphasized language, leads
us to conclude that the test for whether a seasonal classification
will be granted is dependent upon the finding of a seasonal
industry. While R.C. 4141.33(A) does not give a direct definition
of seasonal industry as it does for "seasonal employment" and
"seasonal employer," the meaning of seasonal industry is found
within the provision.
R.C. 4141.33(A) states, in pertinent part:
"Whenever in any industry it is customary to operate because of
climatic conditions or because of the seasonal nature of
such industry only during regularly recurring
periods of forty weeks or less duration, benefits shall be payable
only during the longest seasonal periods which the best practice of
such industry will reasonably permit." (Emphasis
added.)
This emphasized language which defines the term industry
contains the same language as that contained in the definition of
"seasonal employment." However, the full definition of seasonal
industry does not stop there. Under R.C. 4141.33(A), a "seasonal
employer" is one determined by the administrator to have its
operations and business substantially all in a "seasonal industry."
Thus is found the connection between "seasonal employer" and
"seasonal industry" in addition to the provision stated above which
calls for the administrator to determine whether an industry is
seasonal and if so, to establish seasonal periods "for such
seasonal employer."
In light of all of the provisions contained in R.C. 4141.33(A),
read in conjunction with one another, we hold that industries
determined by the administrator to be seasonal are entitled to
seasonal classifications. In addition, a seasonal industry is one
that, because of climatic conditions or because of the seasonal
nature of such industry, it is customary to operate only during
regularly recurring periods of forty weeks or less, as stated
within the definition of "seasonal employment," and such
constitutes substantially all of the employer's business and
operations, as stated within the definition of "seasonal
employer."
While we believe the provision in R.C. 4141.33(A) supports our
holding above, further support can be found in Ohio Adm.Code
4141-32-01. R.C. 4141.33(A) authorizes the administrator to adopt
rules for implementing the section, and Ohio Adm.Code 4141-32-01
states, in pertinent part:
"(A) No industry or employment shall be deemed seasonal unless it
is determine to be seasonal by the administrator.
"(B) Any employer seeking to be determined a 'seasonal employer' by
the administrator shall file with the administrator a written
application to be detemined [ sic ] to be a
seasonal employer and for classification of its employment as
seasonal. The application shall contain the following
information:
"* * *
"(D) Definitions:
"(1) 'Seasonal employer' means an employer whose operations and
business are substantially all in an industry in which it is
customary to operate because of climatic conditions or because of
the seasonal nature of such industry only during regularly
recurring periods of forty weeks or less duration in any
consecutive fifty-two week period.
"(2) 'Seasonal industry' means an industry in which it is customary
to operate because of climatic conditions or because of the
seasonal nature of such industry only during regularly recurring
periods of forty weeks or less duration in any consecutive
fifty-two week period.
"(E) The administrator shall determine whether the employer is a
'seasonal employer' and if so establish the seasonal period. No
seasonal period shall be established which exceeds forty weeks in
duration in any consecutive fifty-two week period."
These provisions are consistent with our interpretation of R.C.
4141.33(A). Under R.C. 4141.33(A) and Ohio Adm.Code 4141-32-01
necessarily, if the administrator determines the employer is a
seasonal employer operating a seasonal industry, then the
employment is seasonal. Such a seasonal industry then will be
entitled to seasonal classifications and such seasonal employees
will not be entitled to unemployment compensation at the end of a
seasonal period.
In interpreting R.C. 4141.33(A) and its rules promulgated
pursuant to such statute, appellee did not err as a matter of law.
It properly found that appellant's operations and business were not
substantially all in a seasonal industry. In holding so, we reject
appellant's arguments regarding an alleged inconsistent
interpretation of the legislative history of the statute and
appellant's argument that such a decision violates public policy.
Accordingly, appellant's assignment of error is overruled.
Having overruled appellant's assignment of error, the judgment
of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
PETREE and CLOSE, JJ., concur.
DISPOSITION
Judgment
affirmed.