REX A. CLAY,
Plaintiff-Appellant
vs.
ADMINISTRATOR OHIO
BUREAU OF EMPLOYMENT SERVICES,
Defendant-Appellee
No. 14084
COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY
COUNTY
1994 Ohio App. LEXIS 661
February 23, 1994, Rendered
T.C. CASE NO. 92-5440.
COUNSEL
RONALD E. REICHARD, Atty. Reg. No. 0022528 and DAVID E. KUNS, Atty.
Reg. No. 0056095, 1040 Talbott Tower, 118 West First Street,
Dayton, Ohio 45402, Attorneys for Plaintiff-Appellant.
DAVID E. LEFTON, Atty. Reg. No. 0029438, 1700 Carew Tower, 441 Vine
Street, Cincinnati, Ohio 45202, Attorney for
Defendant-Appellee.
JUDGES
WOLFF, J., GRADY, P.J. and YOUNG, J., concur.
AUTHOR: WOLFF
OPINION
WOLFF, J.
Rex A. Clay appeals from a judgment of the Montgomery County
Common Pleas Court which affirmed the decision of the Unemployment
Compensation Board of Review. The board of review denied Clay's
application to institute a further appeal from the decision of the
Board of Review referee who had held that Clay was not entitled to
unemployment compensation benefits.
The facts and procedural history of the case are as follows.
Clay was laid off from his employment with H & H Utilities
Co. on December 4, 1991 after working in his latest position,
"running the gravel pit," for about two years and at the company
for over five years. Clay applied for and received unemployment
compensation benefits until February 17, 1992. On February 17, H
& H Utilities called Clay to return to his old position. Clay
refused this position, and an eligibility issue arose as to his
receiving any further unemployment compensation benefits.
Clay filed a "Notice of Eligibility Issue" form which included
his statement that he refused the offer to return to his position
because of his concern about unsafe working conditions. An examiner
filed a fact finding report and determined that Clay should be
denied benefits because he refused an offer of suitable work with
his previous employer without good cause. Clay filed a request for
reconsideration with the administrator. The administrator found
that the original facts in Clay's statement along with those
submitted in his request for reconsideration did not support a
change in the examiner's decision, and the administrator affirmed
the examiner's decision.
Clay appealed the administrator's decision on reconsideration to
the Unemployment Compensation Board of Review. A referee held a
hearing at which Clay was the only person to testify. The referee
affirmed the administrator's decision. Clay applied to institute a
further appeal with the Board of Review, but that application was
denied.
Clay appealed the Board of Review's decision to the Montgomery
County Court of Common Pleas, and the court affirmed the decision
denying Clay continued unemployment compensation benefits.
From the judgment of the common pleas court, Clay appeals,
asserting a single assignment of error.
THE COMMON PLEAS COURT ERRED IN AFFIRMING THE DECISION OF THE
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW.
Clay argues that we should reverse the decision of the common
pleas court affirming the Board of Review's decision to deny him
unemployment compensation benefits. The common pleas court's review
of an administrative decision will not be reversed by this court
unless the common pleas court abused its discretion.
Pons v. Ohio
State Medical Bd. (1993), 66 Ohio
St.3d 619, 614 N.E.2d 748. The court of common pleas is required to
reverse or modify an administrative decision if it finds that the
decision was unlawful, unreasonable, or against the manifest weight
of the evidence. R.C. 4141.28(O). Therefore, we can only reverse
the judgment of the court of common pleas if we find that it acted
arbitrarily, capriciously, or unreasonably in finding that the
decision of the Board of Review decision was lawful, reasonable,
and in accordance with the manifest weight of the evidence.
The original examiner's decision, which was affirmed throughout
all of Clay's administrative appeals, held that Clay was no longer
entitled to benefits based upon R.C. 4141.29(D), which reads, in
pertinent part, as follows:
(D) Not withstanding division (A) of this section, no individual
may *** be paid benefits under the following conditions:
* * *
(2) For the duration of his unemployment if the administrator finds
that:
* * *
(b) He has refused without good cause to accept an offer of
suitable work ***.
The examiner found that H & H Utilities Co.'s offer to Clay
to return to his former position was an offer of suitable work
which Clay refused without good cause. Clay argued to the examiner,
and throughout his appeals, that he refused the offer to return to
his former position because of the unsafe working conditions.
R.C. 4141.29(F) requires the administrator to consider the
degree of risk to the claimant's health and safety in determining
whether any work is suitable for the claimant. As Clay persuasively
highlights in his brief, the decisions throughout his
administrative appeals relied upon the fact that the conditions of
Clay's employment would have been the same upon his return as they
were before he was laid off. The examiner stated that the "work
appears to be injurious to health but [Clay] worked one year by
himself under previous working conditions." The referee stated as
the reasoning for his decision that "the facts presented indicated
[Clay] was recalled to the same job which he left and all
conditions were the same. It is the conclusion of the Referee the
job offered was suitable." Similarly, the common pleas court also
appears to have relied upon the fact that the conditions of Clay's
employment would have been the same as they were before he was laid
off when it stated:
He had performed the exact job for at least the past two years
without complaint of these alleged 'unnecessarily dangerous'
working conditions. He often did work alone in the gravel pit, but
he had the use of a two-way radio at all times.
In sum, after noting that had Clay accepted the offer to return
to his old position the working conditions would have been the same
as before he left, the Ohio Bureau of Employment Services and the
common pleas court determined, in effect, that because Clay had
acquiesced in the allegedly unsafe working conditions in the past,
he thereby waived his right to assert those conditions as a basis
for a finding that the position was unsuitable.
The factual depiction of the conditions of Clay's employment in
the above quoted excerpt from the trial court's opinion is somewhat
misleading. Although Clay had run the gravel pit for about two
years, he had only worked alone in the pit since his assistant quit
the summer before Clay was laid off. Additionally, as we will more
fully discuss later, while Clay did have a two-way radio in his
truck, he would not necessarily have had access to it "at all
times."
We do not agree that Clay's previous acquiescence constituted a
waiver of his right to ever allege the dangerousness of his working
conditions. The board of review itself has refused to interpret
acquiescence in improper working conditions as waiver of any future
complaint about those conditions. The board of review has held that
a claimant, who quit his employment because he was continually
required to accept driving assignments in excess of the hours
allowed by the U.S. Department of Transportation, quit his
employment with just cause. In re Drewry (Dec. 14,
1989), Ohio Unempl. Comp. Bd. of Rev. No. B89-00780-0000,
unreported. Drewry found that "the fact that
claimant had accepted the driving assignments in the past did not
preclude his quitting his employment with just cause." Similarly,
in
Taylor v. Ohio
Unempl. Comp. Bd. of Rev. (1991), 76
Ohio App.3d 405, 601 N.E.2d 670, the court of appeals reversed the
referee's finding that the claimant, who had left employment
because his employer refused to withhold his income taxes, quit his
employment without just cause because he had agreed to the
arrangement when he started and had acquiesced therein for over two
years. Taylor held that the employer had a duty to
withhold the claimants income taxes from his wages, and the
claimant had just cause to leave employment for the employer's
failure to do so regardless of how long the violation had been
continuing.
While Drewry and Taylor both
decided whether a claimant had just cause to quit his employment,
the proposition that a claimant does not waive his right to assert
a violation of a statute or regulation by continuing to work under
certain conditions for a period of time is equally applicable to a
determination of whether a position constitutes suitable
employment. Throughout Clay's administrative appeals, the focus was
on whether the conditions of the position offered to him were the
same as the conditions before he was laid off. The question of
suitability, however, is not to be determined on the basis of
similarity of the conditions of the claimant's past employment and
the conditions of the new position; rather, the question of
suitability is to be answered after considering "the degree of risk
to the claimant's *** safety ***." R.C. 4141.29(F). Therefore,
since Clay did not waive his right to assert that his working
conditions were impermissibly unsafe, a determination should have
been made as to whether the position offered to him posed an
unreasonable risk to his safety. This determination was never
made.
Clay, who was not represented by counsel until he appealed to
the court of common pleas, raised an issue as to the possible
illegality of his working conditions at H & H Utilities in his
hearing before the referee. The referee and the Board of Review
failed to examine the alleged illegality of the conditions. In the
trial court, Clay cited the particular federal regulation which he
alleged was being violated, 30 C.F.R. § 56.18020, which reads as
follows:
No employee shall be assigned, or allowed, or be required to
perform work alone in any area where hazardous conditions exist
that would endanger his safety unless he can communicate with
others, can be heard, or can be seen.
This regulation was promulgated pursuant to the Federal Mine
Health and Safety Act, 30 U.S.C. § 801 et. seq., for the protection
of miners. Gravel operations, such as the one in which Clay worked,
are within the scope of the Act. Marshall v. Cedar Lake
Sand & Gravel Co. (1979), 480 F. Supp. 171, 173; see
also Marshall v. Nolichuckey Sand Co. (C.A.6,
1979), 606 F.2d 693, certiorari denied (1979), 446 U.S. 908
(holding provisions of Act constitutional as applied to gravel
operations).
The Federal Mine Safety and Health Review Commission has issued
an opinion interpreting an identical regulation which applies to
surface mining operations, and the opinion provides guidance for
our review of whether the conditions of Clay's employment were in
violation of 30 C.F.R. § 56.18020. Old Ben Coal
Co. (Oct. 29, 1982), FMSHRC No. LAKE 80-399, 1982 OSHD P
26,283, at 33,209. Old Ben broke down the analysis
of the regulation into several elements. First, a determination
must be made as to whether the employee was working alone, i.e.,
"where miners are effectively, or for practical purposes, working
alone notwithstanding some occasional contact with others."
Old Ben, supra. Throughout the
administrative appeals process, Clay's testimony was undisputed,
and he repeatedly stated that he worked alone in the gravel pit.
Clay stated that he had previously had an assistant, but that the
assistant had quit the summer before Clay was laid off and had
never been replaced. The closest person to Clay was at least 600
feet away in a barn, and someone was not always there. From this
evidence, it is clear that Clay worked alone in the gravel pit.
Second, it must be determined whether he worked in an "area
where hazardous conditions existed that would endanger his safety."
Old Ben, supra. Clay stated that
he worked alone operating a crane, a loader, and a gravel crusher.
There were moving belts on the equipment and rocks falling into the
crusher. Clay also submitted the affidavit of an employee who was
performing, by himself, Clay's previous job after Clay was laid
off, and that employee stated that he had been injured performing
the job when his arm was caught in the gravel crusher as he was
clearing rocks out of the rollers. As noted previously, Clay's
testimony as to the hazardous conditions endangering his safety was
undisputed. From the evidence presented, the only reasonable
conclusion is that he worked in an area where hazardous conditions
existed that would endanger his safety.
Third, a determination must be made as to whether the employee
was in sufficient communication or contact with others. "The
[regulation's] requirements that a miner be able to communicate, or
be heard, or be seen are stated in the disjunctive, and an
affirmative finding with respect to any of the three would preclude
a determination of a violation." Old Ben,
supra. Old Ben held that the
regulation had a dual purpose, "to prevent accidents by timely
warning when possible and to expedite rescue and minimize injury
when an accident does occur." Accordingly, Old Ben
determined that the regulation required "communication or contact
of a regular and dependable nature commensurate with the risk
present in a particular situation." According to Clay's testimony
and statements, the only person who could see him was located in a
barn 600 feet away, and someone was not always there. Further,
there is no indication that the duties of that person included
observation of Clay's activities. Clay did testify that he had a
two way radio in his truck. However, the bottom area of the pit was
approximately two acres, and he was away from his truck operating
the crane, the loader, and the gravel crusher. Clay convincingly
argues in his brief that "a radio in a truck, even if the truck is
nearby, would be useless to a person with his arm caught in a
gravel crusher." Additionally, Old Ben found it
"highly significant" that a miner could be out of sight and hearing
for a lengthy period of time which could substantially delay the
discovery of an injured miner. Clay stated without dispute that he
could be injured and not be discovered until someone came looking
for him the next morning. Therefore, the evidence only supported a
conclusion that Clay was not in regular or dependable communication
or contact with others when he worked in the gravel pit.
Accordingly, for the purpose of Clay's unemployment compensation
claim, the evidence presented demonstrated that the conditions
under which Clay worked when employed with H & H Utilities
constituted a violation of 30 C.F.R. § 56.18020. Clay's testimony,
which, again, was undisputed, was that the conditions would have
been the same if he would have accepted the offer to return to his
old job. In considering whether Clay refused an offer of suitable
employment, the Unemployment Compensation Administrator and Board
of Review should have considered the risk to Clay's safety posed by
the working conditions. When the working conditions constitute such
a substantial violation of a federal safety regulation as is
present here, the employment poses an unreasonable risk to the
claimant's safety, and, as a matter of law, constitutes an offer of
unsuitable employment. The court of common pleas acted unreasonably
in holding that the board of review's decision was reasonable and
supported by the manifest weight of the evidence.
Accordingly, the assignment of error is sustained.
The judgment of the common pleas court will be reversed, and,
pursuant to App.R. 12(B), the decision of the Unemployment
Compensation Board of Review finding Clay ineligible for continued
benefits will be reversed and vacated. Judgment shall be entered,
pursuant to App.R. 12(B), granting Clay the unemployment
compensation benefits to which he is entitled.
. . . . . . . . . .
GRADY, P.J. and YOUNG, J., concur.
DISPOSITION
Reversed and
Vacated.