ABRENDTS ET AL.,
APPELLEES
vs.
OHIO VALLEY HOSPITAL ASSOCIATION,
APPELLANT. BIANCHINI ET
AL., APPELLEES v.
GILES, ADMR.,
OHIO BUREAU OF
EMPLOYMENT SERVICES,
APPELLANT
Nos. 84-232, 84-251, 84-525
SUPREME COURT OF OHIO
476 N.E.2d 1027, 17 Ohio St. 3d 11, 17 Ohio B. Rep. 9
April 24, 1985, Decided
APPEALS from and CERTIFIED by the
Court of Appeals for Jefferson County.
HEADNOTE
Unemployment compensation -- Labor relations -- Benefits
may not be denied when unemployment is legally caused by lockout --
R.C. 4141.29(D) (1)(a), construed.
SYLLABUS
Employees whose unemployment was directly and proximately caused by
a lockout have a right to unemployment benefits pursuant to R.C.
4141.29(D)(1)(a) because then there can be no valid finding that
such unemployment was "due to a labor dispute other than a lockout"
within the meaning of such statute. (Baugh v.
. United Tel. Co. [1978], 54 Ohio St. 2d 419 [8
O.O.3d 427], applied.)
STATEMENT OF THE CASE
The Ohio Valley Hospital Association ("hospital"), appellant,
operates a private hospital in Steubenville, Ohio. The incidents
involved in this case revolve around the negotiations between the
hospital and the Ohio Nurses Association ("ONA"). ONA is one of
three labor unions which represent most of the hospital's
employees. ONA represents the registered nurses employed by the
hospital and was at the time relevant to this case involved in
contract negotiations with the hospital.
The appellees are all members of either the American Federation
of State, County and Municipal Employees ("AFSCME") or the Licensed
Practical Nurses and Skilled Hospital Employees Professional and
Economic Security Program, Inc. ("LPNSHEP"). During the period in
controversy AFSCME and LPNSHEP had collective bargaining agreements
in force with the hospital. The agreements specifically prohibited
strikes or other work stoppages by the labor unions' members.
On October 27, 1978, the ONA began negotiations with the
hospital on a new contract. The contract under which the parties
were working was to expire on December 31, 1978. On December 18,
1978, seeing that no settlement was forthcoming, the ONA sent a
letter to the hospital giving the hospital notice of its intent to
strike on January 3, 1979. Such notice is required by federal law,
Section 8(g) of the National Labor Relations Act (Section 158,
Title 29, U.S. Code), to be given any health care facility at least
ten days before any union engages in a strike, picketing or other
concerted refusal to work. The ONA notice was received by the
hospital on December 20, 1978.
On December 19, 1978, the hospital's board of trustees voted to
close the hospital if the ONA struck. On December 21, 1978, a memo
was sent to all hospital employees informing them that the board
had decided to close the hospital and reassign the patients in
anticipation of the announced strike plans by the ONA. By January
2, 1979, the hospital had reduced its patient census to zero and
had laid off all of the employees who are party to this suit. The
hospital then locked its doors and changed all parking lot passes
and codes to prohibit any employees from coming to work after the
January 2 closing.
On January 2, 1979, the ONA voted to strike the hospital. This
was the first and only formal strike vote taken of the ONA
membership. On January 4, 1979, pickets were set up by the ONA at
the hospital. It was not until March 5, 1979, that the ONA and the
hospital reached an accord. Following the agreement the hospital
reopened March 6, 1979, and then the employees involved in this
suit were recalled to work.
Six hundred fifty-three of the hospital's employees filed for
unemployment compensation benefits in January 1979. Most of these
employees were represented by one of the three unions. The claims
were denied. The claimants then appealed to the Ohio Bureau of
Employment Services Board of Review. The board affirmed the denial
of benefits citing R.C. 4141.29(D) as prohibiting the receipt of
benefits by any person whose unemployment was due to a labor
dispute. Attorneys for AFSCME and LPNSHEP filed an appeal to the
common pleas court on behalf of their employees. ONA members did
not appeal their denial of the benefits.
On November 30, 1981, the common pleas court determined that the
claimants were entitled to unemployment compensation benefits. The
trial court found that the claimants were unemployed due to a
lockout and were therefore entitled to benefits under R.C.
4141.29(D) which reads in pertinent part:
"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 * * *."
The hospital and the Administrator for the Bureau of Employment
Services appealed. The court of appeals affirmed.
The cause is now before this court pursuant to the allowance of
motions to certify the record in case Nos. 84-232 and 84-251.
Further, the court of appeals, finding its judgment to be in
conflict with the judgment of the Court of Appeals for Hamilton
County in Hopkins v. . Giles
(1982), 7 Ohio App. 3d 79, and that of the Court of Appeals for
Lucas County in Adamski v. . Bureau of
Unemployment Comp. (1959), 108 Ohio App. 198 [9 O.O.2d
220], certified the record of the cause to this court for review
and final determination in case No. 84-525.
COUNSEL
Thompson, Hine & Flory, Paul W. Brown, Bricker
& Eckler, James J. Hughes, G. Roger King, Craig A. Haddox,
Freifield, Bruzzese, Wehr & Moreland and
William W. Wehr, for appellant Ohio Valley
Hospital Assn.
Ronald H. Janetzke, for appellees Ester G.
Bianchini et al.
Anthony J. Celebrezze, Jr., attorney
general, Dwight Tillery and Howard M.
Sanders, for appellant Administrator, Ohio Bureau of
Employment Services.
Jaffy, Livorno, Kaufmann & Arnett Co.,
L.P.A., and Stewart R. Jaffy, urging
affirmance for amicus curiae, Ohio AFL-CIO.
Bricker & Eckler, James J. Hughes, G. Roger
King and Craig A. Haddox, urging reversal
for amicus curiae, Ohio Hospital Assn.
JUDGES
BROWN, J. CELEBREZZE, C.J., SWEENEY, LOCHER and DOUGLAS, JJ.,
concur. SWEENEY and DOUGLAS, JJ., concur separately. HOLMES and
WRIGHT, JJ., concur in the judgment.
AUTHOR: BROWN
OPINION
The sole issue in this dispute is what caused the appellees'
unemployment. The appellees were never in any dispute with the
hospital. The negotiations which continued during the period of
late 1978 through early 1979 were between the Ohio Valley Hospital
Association and the Ohio Nurses Association. The appellees at all
times relevant herein had valid contracts with the hospital. The
terms of those contracts forbade a work stoppage by the
appellees.
In a recent decision by this court, Baugh v.
. United Tel. Co. (1978), 54 Ohio St. 2d 419 [8
O.O.3d 427], this court found that the first issue which must be
addressed is what caused the unemployment. The court specifically
stated at 422: "This disqualification provision of R.C.
4141.29(D)(1)(a) applies only if 'unemployment was due
to a labor dispute.' We find that the words 'due
to' mean 'caused by.' They do not mean
merely 'occurring during the course of.' Thus, the element of
causation is indispensable. Hence, the vital question is not
whether the unemployment occurred in the course of the labor
dispute, but whether the unemployment was caused by the labor
dispute. * * *"
While we are sympathetic with the unique position of health care
facilities faced with a possible strike, we are also sympathetic to
employees kept away from their work and work place because of no
action or fault on their part. The prudence of the decision of the
hospital to shut down is not in question. The hospital
administration closed the hospital because it believed that was
best for its patients and the hospital. The record is replete with
conflicting reasons why such a decision by the hospital board of
trustees might have been made, such as the aid to remodeling the
hospital, the well-being of the patients, and low patient census at
the time. The reasons for closing the hospital in the present case
are irrelevant.
The appellees were not parties to any labor dispute. They were
merely innocent third parties. Their unemployment was due to the
closing of the hospital. The dispute between the employer and the
ONA was the cause of their unemployment and they were, therefore,
entitled to unemployment compensation.
The Illinois Supreme Court was faced with a situation similar to
the {*14} present case. In Outboard Marine &
Mfg. Co. v. . Gordon (1949), 403 Ill.
523, 87 N.E.2d 610, office workers were denied access to a plant
when members of a union, to which they did not belong, struck the
plant. The Illinois court was asked to determine if the office
employees were entitled to unemployment compensation benefits under
a statute similar to that in Ohio which denies benefits to persons
unemployed as the result of a labor dispute.
The Illinois court did not find the office workers to be part of
a labor dispute and therefore found them entitled to unemployment
compensation. See, also, Dept. of Indus. Relations
v. . Drummond (1941), 30 Ala. App. 78, 1 So. 2d
395, and Usher v. . Dept. of Indus.
Relations (1954), 261 Ala. 509, 75 So. 2d 165.
A careful review of the record discloses no investigation by the
hospital to determine if the appellees would have refused to work
if picket lines had been established by the ONA. Speculation alone
exists on that point. The hospital here, just as in
Outboard Marine, supra, maintained conditions
which prevented appellees from working or even being put to the
test of whether they would work during the strike by ONA.
The test enunciated in Baugh, supra, requires a
finding whether the unemployment of appellees was caused by a labor
dispute. When the courts below determined that appellees'
unemployment was caused by a "lockout," that automatically excluded
their unemployment "due to a labor dispute." Therefore, the
language in R.C. 4141.29(D)(1)(a) that the "unemployment was due to
a labor dispute" does not apply to the appellees. That language
applies to employees who voluntarily quit working or strike while a
labor dispute with the employer is in progress. The appellees are
innocent bystanders who were unemployed because the hospital board
of trustees created a "lockout" within the meaning of R.C.
4141.29(D)(1)(a). Zanesville Rapid Transit, Inc.
v. . Bailey (1958), 168 Ohio St. 351, 354 [7
O.O.2d 119].
At the time of the closing of the hospital, appellees were not
involved in a labor dispute with the hospital. As to these
appellees, there was no strike, no work stoppage, no slowdown. In
fact, the appellees never expressed any intention to act in concert
with the ONA to aid their cause by honoring any picket lines which
might later be established by the ONA at the hospital. The only
cause of the appellees' unemployment was the cessation of hospital
functions by the hospital, i.e., a lockout. The
refusal of the board of review to apply the Baugh
test to the undisputed facts here was error as a matter of law. The
common pleas court correctly applied the standard of review to the
board of review's decision denying benefits under R.C. 4141.28(O)
by reversing the board because its decision was "unlawful,
unreasonable, or against the manifest weight of the evidence," and
in entering final judgment for the claimants. Because the common
pleas court applied the correct standard of review and reached a
just determination, the court of appeals was required to
affirm.
{*15} Appellees correctly reason that the unemployment
in question occurred during a labor dispute. Such finding does not
support the causal relationship test expressed in
Baugh. Appellees whose unemployment was directly
and proximately caused by a lockout have a right to unemployment
benefits pursuant to R.C. 4141.29(D)(1)(a) because then there can
be no valid finding that such unemployment was "due to a labor
dispute other than a lockout" within the meaning of such statute.
Therefore, the judgment of the court of appeals sustaining the
award of unemployment compensation to the appellees is
affirmed.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.
CONCURRENCE
DOUGLAS, J., concurring.
I concur in the well-reasoned opinion of the majority. In
addition, I think it important to make the following points.
It is uncontested that there was a collective bargaining
agreement between the American Federation of State, County and
Municipal Employees and the Ohio Valley Hospital Association
("OVH") and also an agreement between the Licensed Practical Nurses
and Skilled Hospital Employees Professional and Economic Security
Program, Inc. and the OVH. Both agreements were in effect during
the periods in question in this case and all of the appellees were
covered under one or the other of the agreements. Both agreements
contained "no strike clauses." Such clauses prohibit strikes or
other types of work stoppages during the pendency of the agreement.
The obvious quid pro quo for such an agreement by
the employees is an agreement by the employer not to engage in a
lockout. In the case before us before any strike occurred, if in
fact a strike did occur, all of the appellees were laid off by OVH.
They were told not to come to work and the cards for admission to
OVH's parking lot were changed so the employees could not gain
access to the work premises. No employee was admitted by the
security force unless authorized by the management of OVH. Under
these circumstances, to deny appellees' claims for unemployment
benefits would render validly negotiated and bargained for no
strike clauses meaningless. To be effective, collective bargaining
agreements must be enforced as to employers, as well as
employees.
Finally, it should be noted that at the time of the lockout of
these employees, there was no strike. A strike is a concerted
effort by employees to obtain higher wages or other concessions
from their employer by withholding the services of the employees at
a specific time. An "intent to {*16} strike" notice is not
a strike. In this case OVH completely shut down the hospital after
receiving the notice from the Ohio Nurses Association of the intent
to strike. While this may have been prudent management and even, in
OVH's view, a necessity, nevertheless the fact remains that the
layoff of appellees was not caused by a strike. Whether the action
of OVH is termed as a "lockup," as OVH contends, or a lockout, as
appellees contend -- the result is the same.
Without a strike or a picket line appearing, OVH caused
appellees to be without work and pay, all without fault of
appellees. Accordingly, appellees are entitled to unemployment
benefits.
SWEENEY, J., concurs in the foregoing concurring opinion.
HOLMES, J., concurring in judgment.
The majority opinion does not address the question of whether an
employer's layoff of its employees because of an anticipated
strike, of which the employer had been given notice by the
employees' union, is a layoff due to a labor dispute. It must be
noted that the striking employees who were members of the Ohio
Nurses Association did not appeal their denial of unemployment
compensation. Here, the issue addressed by the majority is whether,
under such circumstances, third-party nonstriking employees may be
considered within the framework of the labor dispute, and therefore
lawfully excluded from unemployment compensation.
In my view, the majority correctly determines that, in the
application of the causal relationship factors between the
unemployment and the strike, no action by these employees
occasioned the labor dispute and resulting layoff. There was a
layoff due to a labor dispute, but not the
appellees' labor dispute. In this sense the majority reasonably
concludes that there had been a lockout as to those nonstriking
employees.
I am able to concur in the judgment here in that within the
context of the majority's approach, I believe that it is reasonable
to conclude that nonstriking employees, such as appellees herein,
should not be denied unemployment compensation for a labor
situation over which they had no control or with which they were
not involved. I believe that it was not the intent of the General
Assembly to deny these types of employees their benefits under the
law.
WRIGHT, J., concurs in the foregoing opinion.