Unemployment Compensation Review Commission

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CASE STATUS: * PURSUANT TO RULE 2(G) OF THE OHIO SUPREME COURT RULES FOR THE REPORTING OF OPINIONS, UNPUBLISHED OPINIONS MAY BE CITED SUBJECT TO CERTAIN RESTRAINTS, LIMITATIONS, AND EXCEPTIONS.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