JAMES J. AGICH, ET AL., APPELLANTS,

vs.

BOARD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, ET

AL., APPELLEES.

No. 92-C-41
COURT OF APPEALS OF OHIO, SEVENTH APPELLATE DISTRICT, COLUMBIANA COUNTY
1993 Ohio App. LEXIS 2929
June 8, 1993, Decided

CHARACTER OF PROCEEDINGS: Civil Appeal from the Common Pleas Court, Case No. 91-CV-478

 COUNSEL

 

For Appellants: Anthony P. Sgambati, Barry Laine, Timothy R. Piatt, Suite 400, Dollar Bank Bldg., P. O. Box 849, Youngstown, Ohio 44501.
For Appellees: Lee I. Fisher, Attorney General, Betsey Nims Friedman, Asst. Atty. Gen., 12th Floor, State Office Bldg., 615 W. Superior Ave., Cleveland, Ohio 44113-1899. Kevin R. Campbell, John E. Britton, 55 Public Square, Suite 2240, Cleveland, Ohio 44113-1901.

 JUDGES

 

Hon. Edward A. Cox, Hon. Joseph E. O'Neill, Hon. Gene Donofrio
 AUTHOR: COX

 OPINION

 

 

 
COX, P.J.

 

This matter presents a timely appeal from a decision of the Columbiana County Common Pleas Court affirming the decision of the appellee, Board of Review finding that appellants, James J. Agich, et al., were not entitled to unemployment compensation benefits.

 

Appellants are a group of 132 teachers employed by the appellee, Board of Education of the Beaver Local School District. The parties had in effect a collective bargaining agreement effective September 1, 1986 through August 31, 1989. Prior to the expiration of the agreement, the parties started negotiations for a successor agreement. Although the negotiations were unsuccessful, they continued following the expiration of the agreement, and the appellants continued working under the terms and conditions of the expired agreement.

 

After several months of unsuccessful bargaining, the appellants served notices of intent to strike with the appellee-Board on January 4, 1990. These notices indicated that the appellants intended to engage in a series of partial strikes against the appellee-Board from Noon until 11:59 P.M. on each school day commencing January 18, 1990. On January 17, 1990, the appellants reviewed and rejected the appellee-Board's final offer.

 

The strike commenced on January 18, 1990. On January 19, 1990, State Employment Relations Board (SERB) held a hearing pursuant to a request by the appellee-Board for a determination of whether the partial strike was authorized. SERB found that the strike was in fact authorized.

 

On January 18th and 19th the appellee-Board closed all of its schools. The record indicates that the appellants were prepared to work until Noon on each of those days. The appellee-Board stopped the appellants' health and hospitalization benefits and pay.

 

The appellee-Board re-opened schools on Monday, January 22, 1990. From January 22nd through January 25th, the appellants reported to work and taught classes through Noon. The appellee-Board refused to pay the teachers for any time worked during this period.

 

Schools closed again from January 26 through January 29, 1990 then reopened on January 30, 1990. The appellants rendered services until Noon that day.

 

On January 30, 1990, the Board notified appellants that they would be required to work the regular seven hour work day beginning January 31, 1990. The appellee-Board was going to require the appellants to sign an acknowledgment prior to the start of each school day indicating that they intended to work the entire school day. The appellants refused to sign this document. Thereafter, the appellee-Board prevented the teachers from working on January 31st, February 1st and February 2nd of 1990. The schools remained open at this time and substitute teachers replaced the appellants.

 

On February 2, 1990, the Common Pleas Court ordered the schools closed for a two week "cooling off" period. The Common Pleas Court allowed the schools to reopen on February 19, 1990 after the court ordered closing did not resolve the matter. Replacement substitutes worked from February 19th through March 2, 1990.

 

The appellants returned to work on March 5, 1990 after the parties ratified a new agreement.

 

On or after January 31, 1990, the appellants filed applications for unemployment compensation benefits with the Ohio Bureau of Employment Services. The appellants filed their claims under R.C. 4141.29(D)(1)(a) which authorizes benefits if a period of unemployment is caused by a lockout. A hearing on the matter was held on April 3, 1990. On April 13, 1990, the administrator issued a decision in favor of the appellants. The administrator concluded that the appellants' periods of unemployment from January 18th through March 2nd of 1990 were due to a lockout by the appellee-Board. On April 28, 1990, the appellee-Board filed an appeal of the administrator's decision with the Board of Review. The Board of Review held an evidentiary hearing on March 20, 1991. On July 10, 1991, the Board of Review issued its decision, reversing the administrator's initial determination, in holding that the appellants were not entitled to receive any unemployment compensation.

 

On August 9, 1991, the appellants filed an appeal with the Common Pleas Court. The lower court affirmed the decision of the Board of Review.

 

The appellants cite two assignments of error in this appeal. The appellants' first assignment of error alleges:

 

"The lower court erred in affirming the Board of Review's decision denying appellants' unemployment compensation benefits where the record before the court establishes that the Beaver Board locked out appellants when it withheld work from the teachers unless they acceded to the Beaver Board's unilaterally implemented and unreasonable terms and conditions of employment and otherwise altered the 'status quo'."

 

Pursuant to R.C. 4141.29(D)(1)(a) a claimant is not disqualified from entitlement to unemployment compensation benefits where the claimant's period of unemployment was caused by a lockout. Appellants argue they are entitled to unemployment compensation benefits since their lack of work was attributable to a lockout by the appellee-Board. The appellants rely on Zanesville Rapid Transit, Inc. v. Bailey (1958), 168 Ohio St. 351, 354-355, 155 N.E.2d 202 and Bays v. Shenango Co. (1990), 53 Ohio St.3d 132, 134-135, 559 N.E.2d 740 in which the Ohio Supreme Court determined that, for purposes of entitlement to unemployment compensation benefits, a lockout exists during a labor dispute when an employer takes any of the following actions: (1) withholds work from employees in an effort to obtain more desirable terms of employment for the employer; or (2) alters the terms and conditions of the employees' employment to such an extent that the employees could not reasonably be expected to accept work under such terms, and does so for the purpose of coercing the employees to either work under the unfavorable terms or abandon their employment; or (3) alters the "status quo" during a labor dispute. Appellants contend that under all three tests, the appellees' conduct constitutes a lockout.

 

With regard to the first test, the appellants argue the appellee-Board withheld work from appellants from January 31st to March 2nd of 1990 in an effort to obtain from the appellants terms of employment favorable only to the appellee-Board. The appellants maintain that the appellee-Board used a coercive tactic in which they withheld all work from the appellants unless appellants first agreed in writing to work a full day under the terms of the "acknowledgment and acceptance of assignment" form. Appellants argue that this would have, in effect, ended the partial strike and put the teachers back in the classroom under terms dictated by the appellee-Board.

 

Next, the appellants argue the appellees' conduct meets the second Zanesville test in that on January 18, 1990 and again on January 31, 1990 and continuing thereafter, the appellee altered the terms and conditions of the appellants' employment to such an extent that the appellants could not reasonably be expected to work under such conditions, and did so to coerce the teachers to either abandon their partial strike or their employment.

 

Before the strike began, the appellants worked under the terms and conditions of the expired agreement. Pursuant to that agreement, the appellants received pay for time worked and were provided with health and hospitalization coverage. Appellants received these benefits on "calamity days" and days when the appellee-Board closed its schools. However, prior to the start of the school day on January 18, 1990, the appellee-board curtailed payment of health and hospitalization benefits and pay, despite appellants' contention that they were willing to provide full services for the greater part of that day and each day that the strike continued. Appellants argue that the appellee altered the terms of employment to coerce the teachers to end the labor dispute or abandon their jobs.

 

Finally, pursuant to the third test, appellants argue the appellee altered the "status quo". In Bays, supra the Supreme Court found that an employer alters the status quo when it does not offer to continue or agree to a continuation of existing work conditions unless the employer has a compelling reason for failing to so agree. Appellants contend that the manifest weight of the evidence indicates that the appellee-Board did not offer work to appellants or agree to allow them to continue under the terms of the expired agreement.

 

First, the appellants maintain the appellee altered the status quo before any job action by the teachers when appellee's (1) broke off the continuing contract talks on January 17, 1990, (2) ordered the teachers to turn in their teaching materials on that date, and (3) curtailed its provision of the teachers' health and hospitalization benefits and pay before the scheduled start of school on January 18th when the teachers were not yet on strike and were not going to be on strike for the majority of each school day. Further, the appellee refused to adhere to the "new status quo" during which time the appellants were on half day strike. Appellants argue the appellee-Board accepted their service yet refused to pay the appellants for their services and continued the curtailment of the appellants health and hospitalization benefits.

 

The standard of review of an administrative appeal is whether the Common Pleas Court abused its discretion. Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705.

 

The work stoppage was due to a labor dispute, other than a lockout, except for the period discussed in Assingment of Error No. 2, and thus the appellants are not entitled to receive unemployment compensation. Zanesville, supra defined lockout as "* * * a cessation of the furnishing of work to employees or a withholding of work from them in an effort to get for the employer more desirable terms." Further, "labor dispute" includes "* * * a controversy between employer and employees concerning wages, working conditions or terms of employment." Leach v. Republic Steel (1964), 176 Ohio St. 221. Based on these definitions, the work stoppage was due to a disqualifying labor dispute other than a lockout. The basis of the labor dispute was the failure of the parties to reach a new agreement. This is clearly a controversy between the appellee and appellant concerning wages, working conditions, etc., within the definition of "labor dispute" as set forth in Leach, supra.

 

Under the definition of lockout in Zanesville, supra there was no "withholding of work" nor was the fulltime teaching requirement implemented to get "more desirable terms." The appellee offered fulltime work to the appellants who refused and only then did the appellee offer the work to substitute teachers.

 

As to the status quo test, the Bays court held:

 

"* * * the test of whether a work stoppage resulted from a strike or a lock-out requires us to determine which side, union or management, first refused to continue operations under the status quo after the contract had technically expired, but while negotiations were continuing." Bays at 135.

 

Applying the Bays court analysis, the appellee did not lockout appellants rather, appellants refused to work under the terms and conditions of the expired agreement, disrupting the status quo.

 

Appellants refused to work a full work day, therefore, the terms and conditions of employment necessarily changed. The appellants, by their actions, are trying to establish a NEW status quo.

 

Appellants' first assignment of error is found to be without merit.

 

The appellants' second assignment of error alleges:

 

"The lower court erred in affirming the Board of Review's decision denying appellants' unemployment compensation benefits for that two-week period of appellants' unemployment when the court closed the school."

 

Appellants contend they were entitled to benefits for the period of time between February 5 and February 16, 1990 when the Common Pleas Court ordered the schools closed for a "cooling off period." Appellants were entitled to benefits during that period because they were involuntarily unemployed due to the lower court's order to close the schools. R.C. 4141.29 sets forth specific reasons for denying benefits to unemployed individuals, and a court ordered closing is not one of the disqualifying reasons.

 

Appellee maintains that appellants made up those school days and were paid for them. Appellee relies on Mt. Healthy Board of Education v. Cook (1986), 28 Ohio St.3d 1, 501 N.E.2d 615 and contends that the court explained that teachers' salaries are earned for the 183 days during which classes are taught, and while teachers' salaries are deferred over a 12 month period, the actual salary is a per diem rate based on the 183 days of class instruction. Therefore, appellee submits that when appellants made up the school days cancelled by the court order, they were compensated for those days.

 

That may well be the fact, but the sole issue before the Board of Review was whether or not the teachers were entitled to benefits under R.C. 4141.29. The amount of those entitlements were not at issue.

 

This assignment of error is found to be with merit.

 

The judgment of the trial court is affirmed in part and reversed in part and remanded to the trial court for further proceedings according to law and not inconsistent with this opinion.

 

O'Neill, J., concurs.

 

Donofrio, J., concurs.

 

APPROVED:

 

EDWARD A. COX, PRESIDING JUDGE

 DISPOSITION
 

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded