JOHNATHAN P. ACHEY, et al., Appellants

vs.

GENERAL MOTORS CORPORATION, et al., Appellees

No. 2355
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, TRUMBULL COUNTY
Slip Opinion
April 17, 1978

CASE STATUS: * PURSUANT TO RULE 2(G) OF THE OHIO SUPREME COURT RULES FOR THE REPORTING OF OPINIONS, UNPUBLISHED OPINIONS MAY BE CITED SUBJECT TO CERTAIN RESTRAINTS, LIMITATIONS, AND EXCEPTIONS.

 COUNSEL

 

Atty. David Clayman, for Appellants
Atty. Jerry A. Fullmer, for General Motors Corporation, Appellees and Edward A. Flask, Assistant Attorney General, for William Garnes and Board of Review, Appellees

 JUDGES

 

VICTOR, J., CONCURS, MAHONEY, J. (SITTING BY ASSIGNMENT), NINTH DISTRICT, DAHLING, J., DISSENTING

 OPINION

 

 

 
The 484 plaintiff-appellants, are all employees of defendant-appellee General Motors Corporation (GM). They appeal the judgment of the common pleas court affirming the decision of the Board of Review of the Bureau of Employment Services finding them not entitled to benefits under the Unemployment Compensation Act. We affirm.

 

FACTS

 

In 1971, GM, through various corporate subdivisions, operated an automobile fabricating and assembly plant at Lordstown, Ohio. The appellants worked at the fabricating plant. It was operated by the Fisher Body division of GM. The assembly plant was divided into a Vega automobile assembly plant operated by Fisher Body and the Chevrolet GM division, and a van and truck plant operated by Chevrolet. The assembly plant, both Vega, van and truck, used 98% of the parts built at the fabricating plant. In October, 1971, the General Motors Assembly division (G.M.A.D.) came in to reorganize and combine assembly plant operations under its control. This reorganization required the negotiation of a new local collective agreement with the assembly plant employees' bargaining representative, the UAW union. These negotiations commenced in December of 1971.

 

During the course of GMAD's takeover, some 376 assembly plant employees were laid off. Production at the assembly plant dropped. The appellants claim the lowered productivity was caused by the layoffs, company imposition of unjustified discipline, and a change in repair yard working schedules. GM claims it was caused by a concerted effort, including sabotage, on the part of the union. Due to the resulting decreased need for parts, the appellants were sent home from the fabricating plant during December, 1971 and January, 1972. Negotiations at the assembly plant continued, but a strike occurred on March 3, 1972. The strike ended March 27, with the execution and ratification of the new collective agreement.

 

The appellants meanwhile had begun to file for unemployment benefits pursuant to R.C. 4141.28. The administrator, in a series of decisions from January through October of 1972, determined that 396 of the 484 appellants were unemployed due to a lack of work and therefore entitled to benefits. The administrator disallowed the claims of the other 88 appellants on the ground that they did not meet a further different eligibility requirement. This disallowance, upheld in the later administrative proceedings, is not at issue in this appeal. GM appealed the decisions of the administrator to the Board of Review. A hearing before a referee was held. The referee reversed the administrator's decision finding the appellants entitled to benefits. The referee found that the appellants were unemployed due to a labor dispute other than a lockout, and thus barred from receiving benefits pursuant to R.C. 4141.29(D)(1)(a). The appellants filed an application with the Board of Review to institute a further administrative appeal. The Board disallowed this application. Appeal was then taken to the common pleas court pursuant to R.C. 4141.28(O). That court affirmed the Board's decision finding the appellants unemployed by reason of a labor dispute other than a lockout.

 

ASSIGNMENT OF ERROR A.

 

"A. Ohio Revised Code § 4141.29(D)(1)(a), relied upon the Board of Review and the Common Pleas Court in denying benefits to appellants, is unlawful for:

 

1. It conflicts with the requirements of the federal Social Security Act;

 

2. It denies claimants equal protection of the law;

 

3. It denies claimants due process of the law."

 

The appellants attack R.C. 4141.29(D)(1)(a) on various federal constitutional grounds. These questions are all mooted by the decision in Ohio Bureau of Employment Services et al., v. Hodory, 431 U.S. 471 (1977), which was adverse to the appellants.

 

ASSIGNMENTS OF ERROR B & C

 

"B. The record does not establish the existence of a labor dispute by reliable, probative and substantial evidence.

 

"C. The record does not establish the necessary causal connection between the alleged labor dispute and the appellants' unemployment."

 

The appellants further contend that the record does not establish the existence of a labor dispute at the assembly plant, or that their unemployment was due to the labor dispute, assuming a labor dispute did exist. Our review of these issues is limited by the provisions in R.C. 4141.28(O), allowing a reversal of the administrative decision only where that decision is unlawful, unreasonable, or against the manifest weight of the evidence. It should also be noted that the provisions of R.C. 4141.28(J), free the referee from common law or statutory rules of evidence, and technical or formal rules of procedure, in the conduct of the hearing. Notwithstanding R.C. 4141.28(J), however, "substantial adherence" to rules applicable in judicial proceedings by administrative bodies is best calculated to result in proper decisions. Bucyrus v. State Dept. of Health, 120 Ohio St. 426, 430 (1929). The Board's decision must be grounded upon relevant, probative evidence. See, General Motors Corp. v. Baker, 92 Ohio App. 301 (1952); Cunningham v. The Jerry Spears Co., 119 Ohio App. 169 (1963). In re Hardware Co., 19 Ohio App. 2d, 157 (1969). Assuming this is the case, factual determinations by the Board are impervious to judicial change when those determinations are reasonable, regardless of whether we would reach a different result in an original hearing. See, e.g., Brown-Brockmeyer Co. v. Roach, 148 Ohio St. 511 (1947); Craig v. Bureau of Unemployment Compensation, 83 Ohio App. 247 (1948); Charles Livingston & Sons, Inc. v. Constance, 115 Ohio App. 437 (1961). The determination of the credibility of witnesses is lodged with the administrative fact finder. Kilgore v. Bd. of Review, 2 Ohio App. 2d, 69 (1965); Sprague v. Bd. of Review, 70 Ohio L. Abs. 387 (App. 1953).

 

R.C. 4141,29(D)(1)(a) prohibits payment of benefits to the appellants if their "unemployment was due to a labor dispute other than a lockout * * *." In Leach v. Republic Steel Corp., 176 Ohio St. 221, 223, 224 (1964), the court stated:

 

"As generally understood, a "strike" is a cessation of work by employees in an effort to obtain more desirable terms with respect to wages, working conditions, etc., whereas a "labor dispute" is of a broader scope and includes a controversy between employer and employees concerning wages, working conditions or terms of employment."

 

See annot., Construction and Application of Provisions of Unemployment Compensation or Social Security Acts Regarding Disqualification for Benefits Because of Labor Disputes or Strikes, 28 A.L.R. 2d, 287, § 4 (1953). A "labor dispute" can exist apart from, before, or after, a strike. Leach, supra; Hall v. American Brake Shoe Co., 13 Ohio Misc. 35 (C.P. 1965). The referee in this case defined a "labor dispute" as follows:

 

"In the application of this concept pursuant to Section 4141.29(D)(1)(a), Revised Code of Ohio the conclusion is generally reached that in order to have a "labor dispute" there must be either a concerted withholding of services either totally or partially on the part of the employees in order to obtain some concession demanded; or a refusal of the employer to provide work for his employees in order to obtain some advantage."

 

Further, the unemployment must be the direct result of the labor dispute in order for the R.C. 4141.29(D)(1)(a) disqualification to apply. Cornell v. Bailey, 163 Ohio St. 50 (1955).

 

The referee found a pattern of resistance to the GMAD consolidation, manifested in several ways. On December 4, 1971, a fire occurred in a motor line control panel, housing electrical relays and connections. This fire resulted in the cancellation of production for an entire shift. The referee found that this fire was "clearly indicative of industrial sabotage". This finding is supported by the record. (T.O.P. 180, 134-36, 851-60.) There was a sharp drop in production at the assembly plant and a large increase in units needing repair work due to damage or incompleteness. The referee found that this damage "clearly indicated industrial sabotage" and was evidence of a "clearly concerted effort on the part of GMAD employees to curtail production". The record supports this determination. (Company exhibits No. 29, 16, 17, 44, 56; T.O.P. p. 250-53, 277, 141-46, 354-57, 429, 403-09, 460, 494-97, 512, 642-48, 683-87, 739-43, 745-50, 851-60, 940-41.) The referee found that grievances under paragraph 78 used to resist company disciplinary efforts, were "frequently filed indiscriminately. The record supports this finding; these grievances were seen as a tactical weapon against GMAD. (T.O.P. p. 403-16, 633-39, 478-80.)

 

The referee found that the reduced productivity resulted in a lessened need for fabricating plant parts. The record supports this finding. (T.O.P. 901-05). The referee found that, after the strike, the unusual production problems ceased. The record supports this determination. (T.O.P. p. 530, 745-50, 1600-01.)

 

The appellants contend that the production problems were the result of the assembly plant lay-offs, repair yard policies, and company discipline. (T.O.P. p. 959-70, 1015, 1067-72, 1087-92, 1111-14, 1309-25, 1359-74, 1396-99.) The referee was justified in not adopting these arguments. He noted that the assembly plant layoffs were concentrated in the old Fisher division side of the Vega plant, while production dropped most in the old Chevrolet division section. This conclusion is supported in the record. (T.O.P. p. 863-64, 896). Further, the schedule change in the repair yard lasted only four days and did not effect the production difficulties then ensuing. (T.O.P. p. 860-61)

 

The evidence demonstrates that a labor dispute existed at the assembly plant. Whether the union is blameless for the damage that occurred is not determinative. The assembly plant employees were involved in a controversy with the employer concerning working conditions and terms of employment. This was manifested in a concerted withholding of services on the part of the employees. See, Co. Ex. 7, 11, 14; (T.O.P. p. 381-401, 498-500, 433, 630-39). We reject the appellants' contentions that they were not sent home as a direct result of the labor dispute.

 

The decision is not unlawful, unreasonable, or against the manifest weight of the evidence.

 

SUMMARY

 

We overrule all the assignments of error and affirm the judgment of the common pleas court. Dahling, J. dissenting. See dissenting opinion.

 DISSENT

 

 

 
DAHLING, J., Dissenting,

 

This is an appeal from a decision of the Court of Common Pleas of Trumbull County affirming the decision of the Board of Review of the Ohio Bureau of Employment Services which denied benefits to the plaintiffs-appellants. The Board of Review's decision had reversed the decision of the Administrator of the Ohio Bureau of Employment Services.

 

The Lordstown plant of General Motors manufactures Vega passenger cars and vans with separate assembly plants. In addition, there is a fabrication plant where these appellants were employed.

 

General Motors made certain assembly consolidations in the Vega and Van division in the latter part of 1971 and eliminated 376 individual employees in the interest of claimed efficiency and economy. Thereafter in December, January, February and March production fell considerably. Also, General Motors experimented with eliminating overtime repair work or completion work on vehicles that had gone through the assembly line.

 

The result of the reduced production was that General Motors had less need for parts from the fab plant and thus laid off the plaintiffs.

 

Considerable testimony was presented from several "former" union members who have since been promoted to foreman positions by General Motors. They testified that there was sabotage by the assembly workers, shoddy workmanship, and intentional slowdown.

 

The testimony of appellants' witnesses was that the reduction in production was the result of the elimination of certain jobs which increased the work of the remaining workers and caused disruption of the assembly line. Also, the company gave out disciplinary layoffs, which further reduced the work force. In addition, the company refused overtime to repair andor complete the vehicles in process. In February, 1972, the company reinstated overtime for repairs and production returned to near normal.

 

The appellants have presented the following Assignments of Error for review:

 

"The Court below erred in affirming the decision of the Board of Review of the Ohio Bureau of Employment Services for the following reasons:

 

A. Ohio Revised Code 4141.29(D)(1)(a), relied upon by the Board of Review and the Common Pleas Court in denying benefits to appellants, is unlawful for:

 

1. It conflicts with the requirements of the federal Social Security Act;

 

2. It denies claimants equal protection of the law;

 

3. It denies claimants due process of the law.

 

B. The record does not establish the existence of a labor dispute by reliable, probative and substantial evidence.

 

C. The record does not establish the necessary causal connection between the alleged labor dispute and the appellants' unemployment."

 

Part "A" of the Assignments of Error is without merit as the constitutional arguments were decided against appellants by the United States Supreme Court in Ohio Bureau of Employment Services v. Hodory, Case No. 75-1707, decided May 13, 1977.

 

Part "B" and "C" of the Assignments of Error are with merit. As to Part "B", appellees argue that the term "labor dispute" includes any controversy concerning wages, working conditions or terms of employment. If this definition is applicable then as stated by appellants, there would always be a labor dispute at General Motors since there are always grievances pending.

 

The referee incorrectly stated:

 

"The record is therefore clear that there was a concerted effort by employees of GMAD to curtail production in order to stymie if not to actually avert the take-over by GMAD that this resulted in a labor dispute which in turn caused the unemployment of the claimants over the period from December 16, 1971, through March 25, 1972, inclusive."

 

There was absolutely no testimony that the acts of GMAD employees resulted in a labor dispute.

 

Considering Part "C" of the Assignments of Error, there again was no testimony that the acts of the employees caused the unemployment of the fab plant. According to General Motors, the fab employees were laid off because there was inadequate work for them to perform. There was inadequate work since GMAD was running at below normal production. However, the loss of production was because GMAD eliminated overtime and many vital jobs and handed out disciplinary lay offs.

 

There was testimony of a fire in a switch box but there was no testimony that this caused any production delay. Also, the testimony of broken windshields and damaged vehicles would only have effected the repair yard not the production line.

 

Mr. Frank Cassetta, an admitted liar, claimed to have secretly damaged parts to slow down production. He spoke in terms of his felonious acts each requiring about 20 minutes to repair. However, the sum total of his acts, if believable, would not have been a factor in GMAD's total production which employed about 10,000 workers.

 

For these reasons, the judgment should be reversed and final judgment entered for appellants.