BRAD W. ROSE>, PLAINTIFF-APPELLANT,

vs.

HERCULES TIRE & RUBBER CO., ET AL., DEFENDANTS-APPELLEES

No. 5-87-9
COURT OF APPEALS OF OHIO, THIRD APPELLATE DISTRICT, HANCOCK COUNTY
1990 Ohio App. LEXIS 345
February 1, 1990, Decided

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court.

 COUNSEL

 

MESSRS. ROGERS & GODBEY CO., L.P.A., Mr. George C. Rogers, Attorney at Law, Toledo, Ohio, For Appellant.
MESSRS. FIRMIN, SPRAGUE & HUFFMAN CO., L.P.A., MR. DOUGLAS W. HUFFMAN, Attorney at Law, Findlay, Ohio, For Appellee, The Hercules Tire & Rubber Co.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, Ms. Sonya Jones, Columbus, Ohio, For Appellee, Bureau of Employment Services.

 JUDGES

 

EVANS, P.J., SHAW and MILLER, JJ., concur.
 AUTHOR: EVANS

 OPINION

 

 

 
EVANS, P.J. This is an appeal from a judgment of the Court of Common Pleas of Hancock County affirming the findings of the Ohio Bureau of Unemployment Compensation Board of Review that the employment of appellant, Brad W. Rose (Rose), was terminated with "just cause" within the meaning of R.C. 4141.29(D)(2)(a), thus rendering him ineligible for unemployment compensation benefits.

 

Rose was employed by the appellee, Hercules Tire and Rubber Co., (Hercules), as a banbury mixer operator from March 10, 1980 to October 3, 1985. On November 4, 1984, Rose was issued a written reprimand for failing to follow the standard mixing formulas for rubber production prescribed by Hercules. On July 19, 1985, after Rose shut down his mixing equipment without permission of a foreman, a meeting was held with Rose and various management personnel of Hercules. At that time Rose was instructed that he was thereafter to strictly comply with the company's mixing formulas as written, abide by mixing cycle schedules and not to shut down his equipment in a non-emergency situation without the authority of a foreman. Rose was further instructed to utilize the corporate chain of command to pursue any grievances which he may have and that his failure to adhere to any of the above instructions would result in his discharge.

 

On October 2, 1985, Rose was experiencing difficulty obtaining the requisite raw materials to continue rubber production. Rose took it upon himself to shut down the equipment and go on break which resulted in the stoppage of production.

 

When Rose reported for work the following day it was rumored that he was in trouble with management for shutting down the equipment. Reacting to these rumors, Rose opted to circumvent the corporate chain of command and went directly to the company vice-president to defend his actions.

 

On October 4, 1985, Rose was called to a meeting, at which time he was discharged for his failure to abide by the specific oral instructions which had been given to him. He was compensated for the wages due him in the sum of $ 511.95 and for his accumulated vacation time in the sum of $ 608.25.

 

On October 4, 1985, Rose filed an application for a determination of his benefit rights. The Administrator of the Ohio Bureau of Unemployment Services (OBES) determined that he was not entitled to unemployment compensation benefits because he had been discharged with "just cause". Rose appealed the Administrator's findings and on January 7, 1986, a full evidentiary hearing was held before a referee of the Ohio Unemployment Compensation Board of Review. On January 13, 1986, upon reviewing the record the referee affirmed the decision of the Administrator of OBES that Rose had been discharged with "just cause" and was not eligible for unemployment compensation benefits. On January 23, 1986, Rose filed an application to institute further appeal which was disallowed by the Board of Review. Rose filed an appeal in the Court of Common Pleas of Hancock County. By judgment entry dated February 3, 1987, the trial court found the Board of Review's decision to have been lawful, reasonable and not against the manifest weight of the evidence.

 

It is from this judgment that Rose appeals submitting one (1) assignment of error as follows:

 

WHEN AN EMPLOYER ESTABLISHES A PROGRESSIVE DISCIPLINARY SYSTEM, TERMINATION OF AN EMPLOYEE IN VIOLATION OF PUBLISHED POLICY IS TERMINATION WITHOUT JUST CAUSE FOR UNEMPLOYMENT COMPENSATION PURPOSES.

 

We note first of all that this assignment of error violates Loc. R. 7(A) in that it is a proposition of law rather than a specific statement of the error claimed. Nevertheless, if we accept appellant's assignment of error as a correct statement of the law then it appears that the appeal of the ruling of the trial court must intend to challenge that portion of the ruling which found the decision of the Board of Review to be lawful.

 

Appellant argues that Hercules' progressive disciplinary policy gave rise to a factor limiting the at-will nature of his employment and that therefore his discharge in contravention of that policy constituted discharge without "just cause" within the meaning of R.C. 4141.29(D)(2)(a).

 

Progressive disciplinary policies have been found in numerous cases to bind employers in their discharge of employees. In Harp v. Bureau of Unemployment Compensation (1967), 41 Ohio Op. 2d 25, 27, the court found that:

 

"[i]f an employer wishes to discharge an employee for a breach of company rules and expects to claim the discharge is 'for just cause in connection with the employee's work', such rules must be fair and they must be administered fairly. (Emphasis original). If an explicit work rule also is accompanied by an explicit penalty, then fairness dictates that an employee not be subjected to punishment greater than the stated penalty." See also Joseph Bays v. Bd. of Rev., et al. (March 8, 1982, Richland C.P. No. 559162-BR (CCH unemployment Insurance Reports p. 38, 717, 718, paragraph 9412 (1982); King v. Hospital Care Corp. (May 13, 1986), Allen App. No. 1-85-1, unreported; Eagle Pitcher Industries, Inc. v. Administrator, OBES (Dec. 11, 1989), Shelby App. No. 17-88-1, unreported; Mullen v. Administrator, OBES (Jan. 19, 1986), Cuyahoga App. No. 49891, unreported."

 

In the case sub judice it is clear from the record that there was no written contract of employment between Rose and Hercules, rather Rose's employment was at will. Hercules had promulgated a progressive disciplinary policy which provided for a series of reprimands and suspensions prior to the discharge of an employee. However, on July 19, 1985, at a meeting with several members of management Rose was given specific instructions that he was to thereafter follow the company's mixing formulas as written, abide by mixing cycle schedules and not shut down his equipment in a non-emergency situation absent a foreman's permission. Rose was further instructed that any grievance he may have should be pursued through the corporate chain of command and that his failure to comply with these instructions would result in his discharge. The meeting was held in an attempt to settle certain problems that had arisen with the job performance of Rose. Rose was, therefore, given specific instructions to follow and appraised of the consequences should he fail to do so in a meeting which could not fail to impress Rose with the seriousness of the matter.

 

These instructions served to improve the quality and quantity of the corporation's product and promote efficiency in internal operations while making it very clear to Rose what was expected of him. These are perfectly fair and legitimate objectives and the instructions given represent a fair means of pursuing those objectives.

 

We hold that these specific instructions given to Rose superceded any general disciplinary policy of the employer and advised Rose of the terms of his employment thereafter.

 

Rose further contends that the implied contract and promissory estoppel principles as applied in Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100 and Helle v. Landmark, Inc. (1984), 15 Ohio App. 3d 1, are similarly applicable herein.

 

In Mers, supra at 101, paragraph three of the syllabus, the Ohio Supreme Court found as follows:

 

"[t]he doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action for forbearance actually resulted and was detrimental to the employee."

 

The court further found that:

 

"[t]he facts and circumstances surrounding an oral employment at-will agreement, including the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge."

 

Under the holding of the Supreme Court in this case the trier of facts had every right to consider the special instructions given to Rose as part of the agreement concerning discharge.

 

In Helle, supra, paragraph three of the syllabus, the court found that:

 

"[w]hen oral or written modification of the original employment contract satisfy the paradigm elements essential to contract formation- i.e. offer, acceptance, and consideration- binding obligations arise."

 

In Helle, supra, the severance benefits therein at issue were offered to the employees as an inducement for them not to leave the company. The fact that they did indeed stay with the company until it closed provided the requisite contract elements. We find nothing in this record upon which to base a contract controlling the discharge of Rose.

 

The decision of the trial court is lawful. The assignment of error is overruled.

 

Having found no error prejudicial to the appellant herein, in any of the particulars assigned and argued, the judgment of the trial court is affirmed.

 

Judgment affirmed.

 DISPOSITION
 

JUDGMENT: Judgment affirmed.