Borden,
Inc., Columbus Coated
Fabrics Division,
Appellant-Appellant,
vs.
Wayne L. Walls, et al.,
Appellees-Appellees; Borden, Inc.,
Columbus Coated Fabrics Division,
Appellant-Appellant, v.
Lester Harrison, et al.,
Appellees-Appellees; Borden, Inc.,
Columbus Coated Fabrics Division,
Appellant-Appellant, v.
Howard Campbell, et al.,
Appellees-Appellees; Borden, Inc.,
Columbus Coated Fabrics Division,
Appellant-Appellant, v.
Thomas P. Horn, et al.,
Appellees-Appellees; Borden, Inc.,
Columbus Coated Fabrics Division,
Appellant-Appellant, v.
Harkins J. Frye, et al.,
Appellees-Appellees; Borden, Inc.,
Columbus Coated Fabrics Division,
Appellant-Appellant, v.
Woodrow W. Wellman, et al.,
Appellees-Appellees; Borden,
Inc., Columbus Coated
Fabrics Division,
Appellant-Appellant, v.
William Slaughter, Jr., et al.,
Appellees-Appellees
Nos. 76AP-722, 76AP-723, 76AP-724,
76AP-725, 76AP-726, 76AP-727, 76AP-728
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
Slip Opinion
March 8, 1977
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UNPUBLISHED OPINIONS MAY BE CITED SUBJECT TO CERTAIN RESTRAINTS,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
Mr. Spencer M. Youell, Associate Corporate Labor Counsel, Borden,
Inc., for Appellant-Appellant
Mr. William J. Brown, Attorney General, Mr. Raymond A. Stegmeier,
Assistant, for Appellees-Appellees
JUDGES
McCORMAC, J., STRAUSBAUGH, P.J., and HOLMES, J., concur.
AUTHOR: MCCORMAC
OPINION
DECISION
McCORMAC, J.
Consolidated for appeal are the cases of seven employees of the
Columbus Coated Fabrics Division of Borden, Inc., who obtained
other employment while on strike from Columbus Coated Fabrics and
who were held by the Ohio Bureau of Employment Services to be
entitled to unemployment compensation benefits when terminated from
the latter employment. All seven employees subsequently returned to
their employment at Columbus Coated Fabrics when the strike
ended.
The Ohio Bureau of Employment Services determined that all of
the employees' interim jobs were bona fide and that all were
entitled to unemployment compensation benefits as the interim jobs
were lost because of non-disqualifying reasons. The decisions were
appealed to the Board of Review which affirmed the Bureau's
decision. A further appeal was taken to the Franklin County Common
Pleas Court which also affirmed the decisions.
From the judgment of the Franklin County Common Pleas Court,
appellant has filed a timely notice of appeal, setting forth the
following assignments of error:
"1. The Court of Common Pleas erred in failing to find that the
decisions of the Board of Review were unreasonable, unlawful and
contrary to the manifest weight of the evidence.
"2. The Court of Common Pleas erred in failing to find that an
individual who is employed in an interim job which is less than
full-time while unemployed as a result of a labor dispute, is not
employed in a bona fide job and is therefore disqualified for
unemployment compensation benefits under Ohio Revised Code Section
4141.29(D)(1)(a).
"3. The Court of Common Pleas erred in failing to find that
receipt of strike relief payments, and performance of picket line
duty during the strike evidenced that appellant's interim
employment was not bona fide.
"4. The Court of Common Pleas erred in failing to find that
appellant William J. Slaughter (76-AP-728) should be disqualified
from receiving unemployment compensation on the same basis as
claimants in two related cases based upon the same facts were
disqualified."
Each of the seven claimants was employed by Borden, Inc.,
Columbus Coated Fabrics Division. On February 10, 1974, a labor
dispute between the members of Local No. 487, Textile Workers Union
of America, and Columbus Coated Fabrics resulted and claimants went
on strike. While on strike the claimants received limited strike
benefits and participated in picket duty at the plant.
While on strike each of the claimants was hired by a new
employer. Five of the claimants, Wayne L. Walls (76AP-722), Lester
Harrison (76AP-723), Howard Campbell (76AP-724), Harkins J. Frye
(76AP-726) and Woodrow W. Wellman (76AP-727), commenced part-time
work for Pinkerton's, Inc. Prior to employment they informed
Pinkerton's of the fact that they were on strike. However,
approximately three weeks later each of the above-named claimants
was discharged from Pinkerton's because of company policy of not
hiring labor union members on strike as Pinkerton's might be
required to furnish guards or do security work in relation to the
plant where the strike exists. The Administrator and Board of
Review found the employment with Pinkerton's to be bona fide and
found claimants were discharged for non-disqualifying reasons.
Thomas P. Horn (76AP-725) was hired by Blaine Lumber Company on
April 15, 1974, for temporary work while he was on strike. He
worked two weeks prior to being separated on April 26, 1974, due to
lack of work. On April 22, 1974, claimant was hired by Porter
Drywall. He worked there for two weeks and was separated on May 10,
1974, due to lack of work. His employment was found to be bona fide
and his discharge to be for a non-disqualifying reason.
William J. Slaughter, Jr. (76AP-728) was hired on March 25,
1974, by Watkins & Perry Maintenance Center, Inc. as a school
bus driver. He worked until June 7, 1974 until discharged for lack
of work.
The first issue which is common to all the cases is whether a
person who is unemployed as a result of a labor dispute and who has
secured an interim job which is less than full-time is disqualified
for unemployment compensation benefits.
R.C. 4141.29(D)(1)(a) provides, in pertinent part, as
follows:
"(D) Notwithstanding division (A) of this section, no individual
may serve a waiting period or be paid benefits under the following
conditions:
"(1) For any week with respect to which the administrator finds
that:
"(a) His unemployment was due to a labor dispute other than a
lockout * * * and for so long as his unemployment is due to such
labor dispute. * * * If it is established that the claimant * * *
obtained a bona fide job with another employer while the labor
dispute was still in progress, such labor dispute shall not render
the employee ineligible for benefits."
The Ohio Supreme Court has held that the claimant is not
required to permanently sever all relationship with his initial
employer and can recover benefits despite the fact that he intends
to and does return to his original job when the strike ends.
Fox v. Fisher Body Division, General Motors Corp.
(1974), 37 Ohio St. 2d 136. The court pointed out that the
statutory language merely requires that the interim job be bona
fide, pointing out that Fox did not take the interim employment in
an effort to circumvent the disqualification provision and that
there was nothing in the record to indicate that appellant had any
relationship with the interim employer other than the usual
employer-employee status. Appellant concedes that the
Fox case is controlling as to the issue of whether
the claimant must permanently sever his relationship with his
original employer, but contends that the Ohio Supreme Court limited
bona fide employment to full-time employment in the
Fox case. We disagree with appellant in this
respect and find that bona fide employment means employment which
is not used as a guise to circumvent the disqualification that
would otherwise apply to unemployment due to a labor dispute. Since
claimants are otherwise qualified for benefits when either full or
part-time employment is lost due to non-disqualifying reasons, the
same rule applies in R.C. 4141.29(D)(1)(a) in determining the
meaning of bona fide employment. While the Fox
case involved full-time employment, there is no such requirement in
the statute nor is there any indication that the General Assembly
intended that exception.
R.C. 4141.46 specifically provides that the Ohio Unemployment
Compensation Act is to be construed liberally in favor of persons
seeking the benefit of the Act. Since the General Assembly has not
excluded bona fide part-time employment or required bona fide
full-time employment to regain eligibility for benefits, no such
requirement should be read into the Act.
Assignment of error number two is overruled.
Assignments of error numbers one and three are combined for
discussion as they are interrelated. In these assignments of error
appellant argues that the decisions of the Board of Review were
unreasonable, unlawful and contrary to the manifest weight of the
evidence, pointing specifically to the evidence that claimants
received strike relief payments and performed picket line duty
during the strike as a controlling indication that the interim
employment was not bona fide. Neither the Common Pleas Court nor
this court may substitute its judgment for that of the
Administrator or the Board of Review. If their decisions are
supported by credible proof, their factual findings may not be
disturbed. Kilgore v. Board of Review (1965), 7
Ohio App. 2d 69. The court may reverse the decisions of the
Administrator or the Board of Review only when contrary to law or
against the manifest weight of the evidence.
Brown-Brockmeyer v. Roach (1947), 148 Ohio St.
511.
Looking at the record it is clear that there was sufficient
evidence for the Administrator and the Board of Review to find that
the interim jobs of claimants were bona fide. The testimony of
claimants was, in effect, that they were conscientiously attempting
to support themselves and their families while on strike and while
otherwise sustained by very limited strike benefit payments. The
claimants were not prohibited from obtaining bona fide employment
because they intended to return to their permanent employment when
the strike ended. Consequently, they were also not required to
terminate all connections with the striking union of which they
were members. The fact that they received strike benefits from the
union or performed picket duties does not establish that the fact
that the interim jobs were not bona fide. There is no indication in
the record that claimants refused work with interim employers
because they were required to do picket duty with the union.
The factual determination by the Administrator and Board of
Review that claimants' subsequent employments were bona fide is
lawful, reasonable and not against the manifest weight of the
evidence.
Assignments of error numbers one and three are overruled.
The fourth assignment of error concerns only the case of William
J. Slaughter, Jr., 76AP-728. There is no specific contention
concerning his ineligibility for unemployment compensation benefits
other than previously discussed except that it is alleged that the
Bureau decided two other cases for the employer based on similar
facts and that claims must be adjudicated in a fair and consistent
manner.
The other two cases have not been appealed to the courts and are
not before us for determination. The finding of the Administrator
and Board pertaining to this claimant was that his employment was
terminated due to lack of work which is a nondisqualifying reason.
The record does not indicate that this is a clearly erroneous
factual determination. Assignment of error number four is
overruled.
DISPOSITION
Appellant's assignments of
error are overruled and the judgment of the trial court is
affirmed