BUDD COMPANY,
APPELLEE,
vs.
MERCER ET AL.,
APPELLANTS
No. WD-83-78
COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, WOOD
COUNTY
471 N.E.2d 151, 14 Ohio App. 3d 269, 14 Ohio B. Rep. 298
February 10, 1984, Decided
HEADNOTE
Unemployment compensation -- Claimant on enforced vacation
without pay is unemployed and entitled to benefits -- Appeal to
court of common pleas -- Agency's decision to be affirmed if a
preponderance of reliable, probative and substantial evidence
exists -- Labor relations -- Collective bargaining agreement --
"Vacation payments" are in fact bonuses, when.
SYLLABUS
1. Where an employer, pursuant to a labor-management contract,
allocates the vacations of his employees, a claimant who finds
himself on an enforced vacation without pay is involuntarily and
totally unemployed for the duration of such "vacation" and shall
receive benefits provided in the Unemployment Compensation Act.
(Dudley v.
. Morris, 10 Ohio St. 2d 235
[39 O.O.2d 370], followed.)
2. The common pleas court, in an appeal from an administrative
agency, must give due deference to the agency's resolution of
evidentiary conflicts and the court may not substitute its judgment
for that of the agency. If, at the agency level, a preponderance of
reliable, probative and substantial evidence exists, the common
pleas court must affirm the agency's decision.
3. Payments by an employer to employees which are made pursuant
to a labor-management collective bargaining agreement, although
denominated as "vacation payments," are, in fact, bonuses where the
agreement provides that employees, based on their seniority, are
entitled to a certain percentage of their previous year's wages,
and, further, where the agreement permits the employees, at their
election, to receive these payments without taking time off from
work.
COUNSEL
Mr. Robert F. Weaver,
Jr., for appellee.
Mr. Gerald B. Lackey, Ms. Joan Torzewski and
Mr. Thomas E. Willging, for appellant.
JUDGES
DOUGLAS, J. CONNORS, P.J., and RESNICK, J., concur.
AUTHOR: DOUGLAS
OPINION
{*269} This is an appeal from the judgments of the Wood
County Common Pleas Court entered in the above numbered cases and
consolidated for purposes of this appeal.1
Gladys V. Mercer and the other twenty appellants are employees
of appellee, the Budd Company. Appellants are members of the
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW) and its Local 1889 (hereinafter
referred to as "the union"). The union and appellee are parties to
a collective bargaining agreement (agreement) which was in effect
at all times relevant to the instant appeal. The agreement contains
the following pertinent and applicable provisions:
"Section 1. Employees in the continuous employ of the Company
for one {*270} (1) year or more as of the date of hire of
any one year shall be eligible to receive two per cent (2%) of
their gross earnings as defined below as vacation pay. Vacation
time for this increment is one (1) week.
"Section 2. Employees in the continuous employ of the Company
for two (2) years or more as of the date of hire of any one year
shall be eligible to receive three per cent (3%) of their gross
earnings as defined below as vacation pay. Vacation time for this
increment is one (1) week and three (3) days.
"Section 3. Employees in the continuous employ of the Company
for three (3) years or more as of the date of hire of any one year
shall be eligible to receive four per cent (4%) of their gross
earnings as defined below as vacation pay. Vacation time for this
increment is two (2) weeks.
"Section 4. Employees in the continuous employ of the Company
for six (6) years or more as of the date of hire of any one year
shall be eligible to receive five per cent (5%) of their gross
earnings as defined below as vacation pay. Vacation time for this
increment is two (2) weeks.
"Section 5. Employees in the continuous employ of the Company
for eight (8) years or more as of the date of hire of any one year
shall be eligible to receive six per cent (6%) of their gross
earnings as defined below as vacation pay. Vacation time for this
increment is two (2) weeks and three (3) days.
"Section 6. The vacation period shall be from January 1st
through December 31st of any given year. However, vacation time off
shall be allocated to Employees on the basis of seniority and the
Management's production requirements.
"Section 7. Each year the Management may, if it notifies the
Union not later than thirty (30) calendar days in advance of its
intent to do so, schedule a vacation shutdown of either one (1) or
two (2) weeks during the months of June, July, or August. Employees
entitled to more vacation than the shutdown period will take their
additional entitlement as scheduled by the Management with
preference in scheduling such additional vacation being given to
employees with the greatest seniority.
"Section 8. Vacation payment shall be made to eligible employees
at the time of the employee's vacation. To receive his vacation
payment, a request, in writing, must be submitted by the employee
to the Management at least two (2) full calendar weeks before the
vacation commences. An employee will receive all of his eligible
vacation payment when he requests it. This means that an eligible
employee will receive only one vacation payment per year.
"Section 9. An employee with less than two (2) weeks of vacation
eligibility shall be able to schedule the number of days per
vacation period and the day of commencement subject to Management
approval in not more than two (2) separate periods per year. An
employee with more than two (2) weeks vacation eligibility shall be
able to schedule the number of days per vacation period and the day
of commencement subject to Management approval in not more than
three (3) separate periods per year.
"Section 10. If a holiday falls during an employee's scheduled
vacation period, he may receive an additional day of vacation
provided that he had indicated that such was his preference at the
time his vacation was scheduled.
"Section 11. Employees eligible for more than five (5) days
vacation may take up to five (5) days vacation per year, one day at
a time provided that the vacation request is made twenty-four (24)
hours in advance of the day requested {*271} and must be
approved by the employee's Supervisor and the Employee Relations
Department prior to the vacation day. All one day vacation requests
will be honored on a first come-first served basis.
"Section 12. Any employee who leaves the employ of the Company
will receive all unpaid vacation monies due him.
"Section 13. Gross earnings are defined as the amount of
earnings indicated on an employee's W-2 statement for the year
immediately preceding the current vacation year."
Pursuant to Section 7, Article XX of the agreement, appellee
properly notified the union that appellee would have a "vacation
shutdown" from July 12, 1982 through July 16, 1982. Although a
limited number of employees worked during the shutdown period, none
of the appellants worked during this time.
Each appellant had been in the continuous employ of appellee for
a time period of at least one year. Accordingly, each appellant was
eligible to receive a certain respective percentage of his or her
gross earnings2 as "vacation pay." The payment of an employee's
vacation pay, pursuant to Section 8, Article XX of the agreement is
to be made to eligible employees at the time of the employee's
vacation. Section 8 of the agreement also provides that when an
employee submits a proper request for vacation pay to appellee,
said employee would receive "all of his eligible vacation payment
when he [the employee] requests it." Further, Section 8 of the
agreement concludes by stating that an eligible employee "will
receive only one vacation payment per year."3
Pursuant to the terms of the agreement, each appellant was
eligible for a vacation payment of some amount. The record
indicates that each appellant properly requested his or her
vacation payment according to the terms of the agreement. The
record also indicates that appellee made these payments to
appellants at various times between the one-year period from August
7, 1981, (the earliest) to August 6, 1982 (the latest).4 None of
the appellants received any pay, vacation or otherwise, from
appellee during the week of the shutdown, July 12, 1982 through
July 16, 1982.
Although some appellants received their vacation payment as
early as August 1981, appellee allocated, ostensibly pursuant to
R.C. 4141.31(A)(5), appellants' vacation payment to the shutdown
period. Notice of appellee's allocation, however, occurred, at the
earliest, on September 7, 1982, and at the latest, on October 27,
1982. The earliest notice of allocation of vacation pay received by
any appellant was nearly two months after the "vacation shutdown"
and almost six months after appellee notified appellants of the
shutdown.5
Appellants filed or reactivated previously filed applications
for unemployment compensation benefits for the week of the shutdown
with the Ohio {*272} Bureau of Employment Services (OBES).
Appellee responded to these applications by contending that
appellants' vacation pay had been allocated to the shutdown period.
On this basis, the administrator denied benefits to appellants,
finding that appellants had received deductible income (the
allocated vacation payments) which exceeded the amount of
unemployment compensation benefits to which appellants would
otherwise have been eligible. Upon reconsideration, the
administrator reaffirmed the denial of benefits to appellants.
Appellants then appealed to the Unemployment Compensation Board of
Review (board). The referee conducted hearings regarding
appellants' claims and subsequently modified the administrator's
decisions. This modification in the case of appellant Mercer,
stated:
"Claimant was separated by The Budd Company due to a lack of
work. Since the claimant did not receive vacation pay for the week
ending July 17, 1982, the claim for said week is hereby
allowed."6
Appellee's further appeals of the referee's decision at the board
level were disallowed. Appellee then filed its appeal in the Wood
County Common Pleas Court. The common pleas court, in a memorandum
decision and judgment entry filed September 30, 1983, reversed and
vacated the decision of the board and remanded the cases to the
board for further proceedings according to law. In so doing, the
common pleas court held that: (1) the board's order affirming the
referee's decision is not supported by reliable, probative or
substantial evidence and is not in accordance with Ohio law; and
(2) the board's order is unlawful and in contradiction of R.C.
4141.31. It is that judgment from which appellants have appealed to
this court, stating as their assignments of error:
Date of Date of
Vacation Letter of
Name Date of Hire Payment Allocation
Judith A. Bishop Feb. 5, 1979 Feb. 22, 1982 9782
Alan Boyer May 18, 1977 May 21, 1982 92082
Marsha Crawford April 6, 1981 June 18, 1982 92082
Judy Emmitt August 27, 1973 Aug. 28, 1981 92082
Bonnie Fortney Sept. 16, 1973 Sept. 18, 1981 92082
Robt. Lee Hunt Jan. 8, 1976 Jan. 15, 1982 92082
Sally Kerr Mar. 26, 1974 Apr. 16, 1982 92082
Gladys Mercer Aug. 7, 1973 Aug. 7, 1981 92082
Patricia Sherman June 29, 1976 Jul. 2, 1982 10582
Phoebe Routson Jan. 30, 1979 Mar. 26, 1982 10682
Sandra Martin Apr. 29, 1975 May 7, 1982 92882
John Meeker May 10, 1976 May 14, 1982 92882
Terrie Kingery Aug. 21, 1978 Aug. 28, 1981 10582
Susan Kerlin Oct. 2, 1974 Oct. 2, 1981 10582
Maria Miranda Sept. 28, 1977 Oct. 2, 1981 10582
Carol Montague June 10, 1974 Aug. 6, 1982 101382
Eileen Bassinger Sept. 5, 1982 June 18, 1982 101382
Shirley Pierce Aug. 7, 1973 Aug. 7, 1981 101382
Mary Baird July 29, 1974 Aug. 7, 1981 101882
Nancy Dick Feb. 12, 1975 Feb. 12, 1982 102082
Dona Krebs Feb. 7, 1974 Feb. 12, 1982 102782
{*273} "A. The trial court erred in reversing the
decision of the referee of the Ohio Bureau of Employment Services
and holding that appellants were not eligible for unemployment
insurance during an enforced vacation without pay caused by a lack
of business.
"B. The trial court erred in reversing the decision of the
referee of the Ohio Bureau of Employment Services and holding (1)
that an annual payment to employees could properly be allocated to
the period of an enforced plant shutdown regardless of when the
payment was actually made, and (2) that there is no limitation on
the right of an employer to allocate vacation pay pursuant to
O.R.C. § 4141.31(A)(5).
"C. The trial court erred in reversing the decision of the
referee of the Ohio Bureau of Employment Services and holding that
an annual payment computed as a percentage of prior wages is
'remuneration' and 'vacation pay' within the meaning of O.R.C. §
4141.31(A)(5) and not a bonus."
Appellants' assignments of error are interrelated and,
therefore, will be discussed together.
Appellee's position in the instant appeal is at least somewhat
dubious, if not precarious, definitely inconsistent and closely
approaching the unexplainable. Appellee asserts that the vacation
payments made to appellants were allocatable to the period of the
shutdown, while agreeing that during the shutdown period,
appellants were "totally unemployed." "An individual is 'totally
unemployed' in any week during which he performs no services
and with respect to such week no remuneration is payable to
him." R.C. 4141.01(M). (Emphasis added.) Unemployment
compensation benefits otherwise payable shall be reduced by the
amount of remuneration a person receives with respect to a
particular week. R.C. 4141.31(A). Vacation pay, which is payable
under the terms of a labor-management contract or agreement and
allocated to designated weeks, is a specific form of remuneration
which may be used to reduce the amount of unemployment compensation
benefits for a given week. R.C. 4141.31(A)(5). Thus, for appellee
to take the position that appellants' vacation pay is, as a form of
remuneration, allocatable to the shutdown period, and at the same
time, agree that during the shutdown period, appellants were
"totally unemployed" which, by definition, means appellants
received no remuneration for the shutdown period, is unquestionably
contradictory and bordering on the nonsensical.
It must also be remembered that the appeal in the common pleas
court was an appeal from an administrative agency and, as such, was
governed by R.C. Chapter 2506. See Schoell v.
. Sheboy (1973), 34 Ohio
App. 2d 168, 171-172. Specifically, the common pleas court is
confined to the transcript compiled during the agency's proceedings
(R.C. 2506.03, 2506.02), unless one of the conditions specified in
the statute appears on the face of the transcript or by affidavit.
R.C. 2506.03(A) and (B). See Dvorak v.
. Municipal Civil Service
Comm. (1976), 46 Ohio St. 2d 99 [75 O.O.2d 165];
Grant v.
. Washington Twp.
(1963), 1 Ohio App. 2d 84, 86 [30 O.O.2d 326]. When reviewing the
decision of an administrative agency, the common pleas court, based
on the entire record, may find that the agency's order,
adjudication or decision is "unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable and probative evidence * * *." R.C. 2506.04.
In undertaking this hybrid form of review, the common pleas court
must give due deference to the administrative agency's resolution
of evidentiary conflicts,
Univ. of Cincinnati
v. . Conrad (1980), 63 Ohio
St. 2d 108, 111 [17 O.O.3d 65], and the court may not, especially
in areas of administrative {*274} expertise, blatantly
substitute its judgment for that of the agency.
Dudukovich v.
. Housing Auth. (1979), 58
Ohio St. 2d 202, 207 [12 O.O.3d 198].
Having briefly reviewed these basic principles concerning review
of an administrative agency's decision, we now turn to the judgment
entry of the trial court. The lower court's judgment states in
two-fold part that: (1) the board's decision is not supported by
reliable, probative, or substantial evidence and is not in
accordance with Ohio law, and (2) the board's decision is unlawful
and in contradiction of R.C. 4141.31.
The key term in R.C. 2506.04 is "preponderance."
Dudukovich, supra, at 207. "If a
preponderance of reliable, probative and substantial evidence
exists, the Court of Common Pleas must affirm the agency decision."
Id. In determining whether the common pleas court
properly applied the standard of review set forth in R.C. 2506.04,
this court has a limited function. This court's determination is
limited to the question of whether, as a matter of law, a
preponderance of reliable, probative and substantial evidence
exists to support the decision of the board. See
Dudukovich, supra, at 208.
Accordingly, upon our review of the record in each appellant's
case, it is our determination that, as a matter of law, a
preponderance of reliable, probative and substantial evidence
exists in the transcript of the board's proceedings. The common
pleas court, therefore, should have affirmed the decision of the
board. On this basis alone, the judgment of the common pleas court
must be reversed.
The trial court also held that the board's decision was
"unlawful and in contradiction of Ohio Revised Code § 4141.31."
Thus, we proceed with our analysis of this holding of the common
pleas court. Appellants urge this court to determine that although
the payments due appellants were labelled "vacation pay," in
actuality these payments are a "bonus" for the previous year's
work. In this regard, we are persuaded by the reasoning of the
Supreme Court of our sister state of Michigan in the case of
Renown Stove Co. v.
. Mich. Unemployment
Comp. Comm. (1950), 328 Mich. 436, 44 N.W. 2d 1, and
followed by that court in Rich Mfg. Corp. v.
. Lindsey (1965), 376 Mich.
241, 137 N.W. 2d 141. In each of these cases, there existed a
collective bargaining agreement similar to the one in the case
sub judice. The Michigan Supreme Court, in
interpreting these agreements, held:
"It will be noted that under the contract the employer did not
have the option of laying employees off for 1 or 2 weeks, declaring
the layoff to be a vacation and designating the 40 or 80 hours' pay
in lieu of vacation provided for in the contract, to be, in fact,
vacation pay; on the contrary, the option rested with the employees
to elect whether they would take vacation with pay or a bonus of 40
or 80 hours' pay in lieu of vacation with pay. The employees
covered by this contract exercised their option and elected to
receive a bonus * * * as they had a right to do under the contract.
The payment so received was, therefore, a bonus and not vacation
pay and, in consequence, the employees involved did not receive a
vacation with pay." Rich, supra, at 245, 137
N.W.2d at 142; Renown Stove, supra, at 443, 44
N.W.2d at 4.
See, also, in this regard, Kariszeki v.
. Todd Shipyards Corp.
(1958), 6 A.D.2d 945, 175 N.Y.Supp. 2d 712, 713.
In the present case, as in Rich and
Renown Stove, supra,
appellants-employees had the right to select their period of
vacation or to receive a payment in lieu of vacation. In the
present case, as in Rich and Renown Stove,
supra, the collective bargaining agreement provides for
payments if employees {*275} chose not to take a vacation,
thus entitling employees-appellants to "vacation payments" even
though they had performed services during and received remuneration
for every week in the year. Thus, the facts of the instant appeal,
as did the facts in Rich and
Renown Stove, supra, require
that the otherwise labeled "vacation payments" be deemed what they
actually are, bonuses.
Although bonuses are considered remuneration (R.C.
4141.01[H][1]), R.C. 4141.31(A)7 is silent as to whether bonuses
are a specific form of remuneration which shall reduce the amount
of unemployment compensation benefits otherwise payable. This
statute (R.C. 4141.31[A]) contains five specific forms of
remuneration which reduce the amount of benefits payable for any
week. They are: (1) remuneration in lieu of notice, (2) partial
disability payments, (3) retirement or pension allowances, (4)
separation or termination pay, and (5) vacation pay or allowance.
Thus, applying the statutory construction principle of
expressio unius est exclusio
alterius,8 bonuses, although remuneration, are non-allocatable to
any specific week. See Franceschi Unemployment Comp. Case
(1961), 196 Pa. Super 150, 154, 173 A. 2d 774, 776.
{*276} Next, we are faced with the question of whether
the trial court erred in holding that: (1) an annual payment to
employees could properly be allocated to the period of an enforced
plant shutdown regardless of when the payment was actually made,
and (2) no limitation exists on the right of an employer to
allocate vacation pay pursuant to R.C. 4141.31(A)(5). These issues,
which are raised in appellants' second assignment of error, are
necessarily moot, as we have determined, supra,
that the so-called "vacation payments" are, in actuality, bonuses
and, as such, non-allocatable. However, we note several cases which
indicate that these holdings of the trial court should not
prevail.
First, we note the case of Dudley v.
. Morris (1967), 10 Ohio St.
2d 235 [39 O.O.2d 370]. Although the dispute in Morris,
supra, arose out of a distinguishable factual context, we
find the court's conclusion in that case most persuasive, wherein
the court stated:
"[W]e hold that where an employer pursuant to a labor-management
contract allocates the vacations of his employees, a claimant who
finds himself on an enforced vacation without pay is involuntarily
and totally unemployed for the duration of such 'vacation' and
shall receive benefits provided in the Unemployment Compensation
Act, Sections 4141.01 to 4141.46, inclusive, of the Revised Code."
Id. at 239.
Further, we find the analysis utilized by the Arkansas Supreme
Court in Thornbrough v.
. Schlenker (1958), 228 Ark.
1012, 311 S.W. 2d 753, most helpful. That court, in
Thornbrough, supra, at 1015, 311
S.W.2d at 755, set forth the following test for determining when,
in factual contexts such as the one at issue, unemployment
compensation benefits should be awarded:
"[I]f, by the contract between the Union (the agent of the
workers) and the management of the plant, there was reserved by the
management of the plant the right to fix, at its own option, a
plant wide vacation period, then the employees had agreed to such
vacation and had been ' voluntarily unemployed';
and, therefore, not entitled to employment benefits. But if the
contract had no provision whereby the management reserved the right
to fix, at its own option, a plant wide vacation shutdown, then the
employees had not agreed to such vacation period and were '
involuntarily unemployed' during such shutdown
period; and, being involuntarily unemployed, they
were entitled to unemployment compensation."
The rationale for such a rule proceeds first upon the basis that
if an individual employee has asked for a vacation or for time off
and such a request has been granted, that employee is not
voluntarily unemployed. "His unemployment results from his own
volition in making the request." Combustion Engineering,
Inc. v. . O'Connor
(Mo. App. 1965), 395 S.W. 2d 528, 531. A similar situation
can be said to arise where a collective bargaining agreement
contains a provision requiring a plant-wide vacation during a
specific period, where the employees, as members of a union, are
deemed to have requested the vacation period by the action of their
bargaining agent and their subsequent approval of the agreement.
O'Connor, supra, at 531; see
Bedwell v. . Review
Bd. of Indiana Employment Security Div. (1949), 119 Ind.
App. 607, 609, 88 N.E.2d 916, 917.
Thus, it becomes imperative to look to the terms of the
agreement in the instant case. First, Section 6, Article XX of the
agreement states that the "vacation period shall be from January
1st through December 31st of any given year." Although Section 7,
Article XX provides appellee with the right to schedule a "vacation
shutdown" of one or two weeks during the months of June, July or
August, Section 8 of Article XX states that "vacation payment shall
be {*277} made to eligible employees at the time of the
employee's vacation," and continues by stating that "[a]n employee
will receive all of his eligible vacation payment when he requests
it."
The actions of appellants in the present case did not result in
their unemployment. The actions taken by appellants,
i.e., requesting their "vacation payment," are
actions which they had every right to take under the collective
bargaining agreement. To adopt appellee's position would be
rewriting the collective bargaining agreement to require appellants
to request "vacation payments" only during periods of a "vacation
shutdown." This is clearly not contemplated by the present
agreement. Cf. O'Connor, supra, at 532. Further,
the "vacation payments" which appellants herein actually received
were not related to an ascertainable week during which appellants
lost wages. The "vacation payments," pursuant to the agreement,
were paid upon an employee-appellant's request. Cf.
Conon v. . Adm.,
Unemployment Comp. Act (1955), 142 Conn. 236, 245-246, 113
A. 2d 354, 359-360; see
Ungarean Unemployment Comp.
Case (1966), 207 Pa. Super. 506, 512, 218 A. 2d 847, 850.
("If it is improper to allocate vacation pay to non-vacation time
it is equally improper to allocate vacation pay to the general
shutdown period, which, for these claimants [appellants, herein]
was a non-vacation period, so found by the fact finders.") See,
generally, Annotation, Unemployment Compensation as Affected by
Vacation or Payment in Lieu Thereof (1982), 14 A.L.R. 4th 1175,
1181-1192. But, see, Goodyear Tire & Rubber
Co. v. . Employment Security
Bd. of Rev. (1970), 205 Kan. 279, 469 P. 2d 263;
Mills v.
. Gronning (Utah 1978), 581
P. 2d 1334.
The unfairness which stems from the common pleas court's
decision can best be illustrated in the following situation.
An employee who was permitted to take vacation and receive
"vacation payment" prior to the "vacation shutdown" would be
entitled to unemployment compensation benefits during the shutdown
period. Thus, an employee who took an early vacation would receive
both vacation pay and unemployment compensation benefits while
working fewer weeks than appellants herein. Cf. Frederick
Unemployment Comp. Case (1968), 212 Pa. Super. 112, 119,
239 A. 2d 874, 877 (dissent). To permit the common pleas court
decision to stand would be tantamount to this court placing its
imprimatur on the patent unfairness illustrated above.
Based on all the foregoing reasons, appellants' assignments of
error are found well-taken and the judgments of the Wood County
Common Pleas Court are reversed and vacated. The decisions of the
board of review are reinstated and affirmed. The cause is remanded
to the Wood County Common Pleas Court for execution of judgments
rendered herein.
Judgment
reversed.
DISPOSITION
Judgment
reversed.
OPINION
FOOTNOTES
1 There exist twenty-one separate cases and files in the record of
this appeal. The named appellants' case, The Budd
Company v. . Gladys V.
Mercer, was selected in the trial court as a
representative case, the resolution of which would be applicable to
all appellants.
2 Section 13 of the agreement defines gross earnings as "the
amount of earnings indicated on an employee's W-2 statement for the
year immediately preceding the current vacation year."
3 The provision appears to serve appellee's interest, as Gary
Keel, employee relations supervisor for appellee, testified that an
annual lump sum vacation payment is the only manner in which the
computer is able to process such a payment.
4 The record indicates that Carol Montague received her vacation
pay on August 6, 1982. All other appellants had received their
vacation pay prior to July 12, 1982, the first day of the
shutdown.
5 The table on the following page, provided by appellants,
illustrates the relevant dates of hire, dates of vacation payment,
and dates of notification that appellee was allocating the vacation
payments to the shutdown period.
6 Similar decisions by the referee also were made in each of the
other appellants' cases.
7 R.C. 4141.31 relevantly states:
"(A) Benefits otherwise payable for any week shall be reduced by
the amount of remuneration a claimant receives with respect to such
week as follows:
"(1) Remuneration in lieu of notice;
"(2) Compensation for temporary partial disability under the
workers' compensation law of any state or under similar law of the
United States;
"(3) Except as provided in section 4141.312 of the Revised Code,
payments in the form of retirement, or pension allowances under a
plan wholly financed by an employer which payments are paid either
directly by the employer, or indirectly through a trust, annuity,
insurance fund, or under an insurance contract whether payable upon
retirement, termination, or separation from employment; provided
that if the claimant has twenty-six weeks or more of employment
with a subsequent employer or employers who are not paying him a
pension or retirement allowance, then such pension or retirement
payments shall not reduce the benefits payable for the week, and
provided further that no benefits shall thereafter be charged to
the account of the employer who is paying the pension, but instead
such benefits shall be charged to the mutualized account except as
provided in division (B)(1)(b) of section 4141.241 of the Revised
Code if the claimant's separation from the employer was
disqualifying under division (D)(2)(a) of section 4141.29 of the
Revised Code.[;]
"(4) Remuneration in the form of separation or termination pay
paid to an employee at the time of his separation from
employment;
"(5) Vacation pay or allowance payable under the terms of a
labor-management contract or agreement, or other contract of hire,
which payments are allocated to designated weeks.
"If payments under this division are paid with respect to a
month then the amount of remuneration deemed to be received with
respect to any week during such month shall be computed by
multiplying such monthly amount by twelve and dividing the product
by fifty-two. If there is no designation of the period with respect
to which payments to an individual are made under this section then
an amount equal to such individual's normal weekly wage shall be
attributed to and deemed paid with respect to the first and each
succeeding week following his separation or termination from the
employment of the employer making the payment until such amount so
paid is exhausted. * * *"
8 This rule of construction "means the mention of one thing
implies the exclusion of another," Green, Inc. v.
. Smith (1974), 40 Ohio App.
2d 30, 32 [69 O.O.2d 17], and although not a rule of law, is used
as a rule of construction to cut through ambiguities.
State, ex rel. Jackman, v.
. Court (1967), 9 Ohio St.
2d 159, 164 [38 O.O.2d 404].