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.