JOHN F. NUTTING, APPELLANT
vs.
FORD MOTOR COMPANY and BOARD OF REVIEW, OHIO BUREAU OF
EMPLOYMENT SERVICES, APPELLEES
No. 38979
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
1979 Ohio App. LEXIS 10549
June 7, 1979

APPEAL FROM COMMON PLEAS COURT, No. 961,439
 
COUNSEL
For Plaintiff-Appellant: Ivan L. Miller, Esq.
For Defendants-Appellees: Q. Albert Corsi, Asst. Attorney General
JUDGES
JACKSON, J., CORRIGAN, J., CONCURS, KRENZLER, P.J., DISSENTS (See Dissenting Opinion attached to Journal Entry and Opinion)
AUTHOR: JACKSON
OPINION
JOURNAL ENTRY AND OPINION
JACKSON, J.
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is modified and as modified affirmed. Each assignment of error was reviewed and upon review the following disposition made:
This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas affirming a decision of the Board of Review in favor of the Ohio Bureau of Employment Services, the appellee herein.
Appellant John Nutting applied for and received unemployment benefits totaling $ 3,210 for the weeks ending March 22, 1975 through October 11, 1975. The benefits were paid in weekly installments of $ 107.00.
Each week that the appellant collected unemployment compensation, he was required to fill out a form entitled "Weekly Claim for Benefits." Question 5 of that form inquired: "Did you work or were you self-employed (including farm work), during the week identified above?" Appellant checked "No" to this question on each weekly application form.
As a result of an investigation conducted by the administrator of the Ohio Bureau of Employment Services, it was determined that the appellant was in fact self-employed for the weeks ending March 22, 1975 and March 29, 1975, and that for the weeks ending April 5, 1975 through October 11, 1975 appellant was involved in union activities. Consequently, the administrator found that appellant fraudulently misrepresented his employment situation to the Bureau and was therefore not entitled to the unemployment benefits he received for that period pursuant to provisions of R.C. 4141.35(A). The administrator ordered appellant to return the benefits he received ($ 3,210), and further ordered appellant ineligible for unemployment compensation for 60 otherwise valid weekly claims during the period May 23, 1976 through May 20, 1978.
Appellant timely filed a written request for reconsideration of the administrator's decision. The administrator referred appellant's request for reconsideration to the Board of Review as an appeal.
A hearing was held before a referee of the Board of Review. The only witnesses at the hearing were the appellant and Donald Klein, an investigator for the Ohio Bureau of Employment Services.
Klein testified that appellant and two of his friends got together in March, 1975 to produce wooden plaques or "shields" for sale to the public (T. 4). The plaques were produced in appellant's home (T. 24, 27). The business was known as Nu-Saxon Company, although the record is unclear as to the exact form of this business venture - partnership, corporation, etc. (T. 5-6, 31, 35-36, 71-72). [FN1] Nonetheless, due to a lack of sales, the business venture failed after 3-4 weeks in late March, 1975 (T. 4, 6). Appellant did not receive any compensation or other income as a result of this venture (T. 7).
Klein further testified that for the weeks ending April 5, 1975 through October 11, 1975 appellant was president of the International Society of Skilled Tradesmen, Local #7 (T. 7). Based upon conversations he had with the appellant during his investigation, Klein testified that appellant spent between four and nine hours a day, six or seven days a week, on union activities, including general organization work and soliciting membership (T. 8, 15-16). Appellant also received three checks from the union, each in the amount of $ 152.00, on September 24, 1975, September 30, 1975 and on October 8, 1975 (T. 9). Klein testified that appellant referred to these checks as his "wages." (T. 22-23)
After the union informed appellant that such payments were illegal as long as he was claiming unemployment benefits, the union apparently advised appellant it would make up the difference if he went off unemployment (T. 10-11, 66). Appellant subsequently received a check for $ 340.00 from the union, although there was conflicting testimony as to whether it was received before or after he stopped collecting unemployment compensation (T. 9, 49). There was also testimony that appellant had been president of the union (ISST) since 1970 and was engaged in union activities as well as his wood-working hobby while he was employed (T. 38, 51-52, 57-58). Only after appellant became unemployed did the time he spent on union activities and his wood-working hobby increase (T. 61).
The appellant testified that he and two friends informally agreed to produce and sell shields and share equally in any proceeds (T. 31, 35-36). There was no written agreement between them (T. 35). According to appellant, he made between 15-20 shields in his home in May, 1975 (T. 32-33), and that they were only used as samples to test the market (T. 71-72). When no sales were made after 3-4 weeks, the venture was terminated (T. 33). Appellant did not consider this to be self-employment, but rather an extension of his woodworking hobby (T. 37). Appellant also testified that if they had sold any shields, he would have reported this to the bureau and "gone off unemployment." (T. 37-38)
Appellant further testified that his union work was conducted in his home, except for various trips to cities in Ohio, Michigan and Pennsylvania which he said occurred during "non-working" hours (T. 39-41, 43). The three checks he received from the union were marked as salary on the union's ledger (T. 48, 65). However, appellant thought they were to cover his expenses [FN2] and hence did not report them as income (T. 48). Nor did he report a subsequent check from the union for $ 340 which appellant testified he received after he went off unemployment compensation on October 17, 1975 (T. 49-50).
Appellant also testified that he made telephone calls and otherwise looked for employment while he was collecting unemployment benefits (T. 43-44).
After considering the evidence adduced at the hearing, the referee affirmed the decision of the administrator. The Board of Review subsequently adopted the decision of the referee.
Upon appeal to the Court of Common Pleas, the court affirmed the decision of the Board of Review.
Appellant appeals and assigns four errors for review:
I. THE BOARD OF REVIEW AND THE COURT BELOW ERRED IN NOT ACCORDING APPELLANT THE LIBERAL CONSTRUCTION TO WHICH HE WAS ENTITLED UNDER ORC 4141.46.
II. THE BOARD OF REVIEW AND THE COURT BELOW ERRED IN DENYING APPELLANT RECONSIDERATION OF THE CASE BY THE INVESTIGATIVE DEPARTMENT OF THE BUREAU OF EMPLOYMENT SERVICES.
III. THE BOARD OF REVIEW AND THE COURT BELOW ERRED IN NOT REVERSING AND VACATING THE ORDER AS BEING UNLAWFUL, UNREASONABLE, AGAINST PUBLIC POLICY AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
IV. THE BUREAU OF EMPLOYMENT SERVICES WAS DISCRIMINATORY AGAINST APPELLANT.
Appellant asserts by his second assignment of error that the failure of the Bureau of Employment Services to give "reconsideration" to the administrator's order pursuant to R.C. 4141.28(G)(1) constituted a failure of due process. This argument is without merit.
Revised Code 4141.28(G)(1) [FN3] clearly provides "any interested party" a right to request reconsideration of the administrator's determination within 14 days after notice of the decision was mailed. At the same time, however, R.C. 4141.28(G)(2) [FN4] also provides that the administrator has the discretion upon receiving a request for a reconsideration to refer such request to the Board of Review as an appeal "if in his judgment the issues are such as to require a hearing."
In the case at bar, a written request for reconsideration was timely filed by the appellant with the administrator. The appellant's request was referred to the Board as an appeal. The record fails to disclose that this action by the administrator constituted an abuse of discretion. Consequently, appellant's second assignment of error is overruled.
By his first and third assigned errors, appellant basically argues that the Board failed to liberally construe the unemployment compensation laws (R.C. 4141.01 et seq.) when it applied the facts in this case, and that the Board's decision was against the weight of the evidence. As will become apparent, both of these arguments are closely related and therefore will be disposed of together.
Revised Code 4141.46 requires that provisions of sections 4141.01 to 4141.46, inclusive, be "liberally construed." Appellant maintains that had the Board "liberally construed" the relevant provisions, it would not have found appellant's attempt to maintain his woodworking skills and his "customary" union activities as constituting employment within the meaning of the statute.
First, while R.C. 4141.01 et seq. is a remedial statute and as such is to be liberally construed, it must be applied according to its clear intent as exhibited by its unambiguous language. The intent of the statute may not be changed "under the guise of interpretation or construction . . ." Brown v. Town and Country Auto Sales (1974), 43 Ohio App.2d 119, 125 (citing State, ex rel. Maher, v. Baker (1913), 88 Ohio St. 165, 172; Adamski v. Bureau of Unemployment Comp. (1959), 108 Ohio App. 198.
Second, R.C. 4141.28(O) provides that when there is an appeal from the Board of Review to the Common Pleas Court, the court must affirm the decision of the Board unless it finds that the decision was unlawful, unreasonable or against the weight of the evidence. See Brown-Brockmeyer v. Roach (1947), 148 Ohio St. 511; Kilgore v. Board of Review (1965), 2 Ohio App.2d 69. Our review of this appeal is similarly constrained. Kilgore v. Bd. of Review, supra at 72.
In the case at bar, the Board of Review determined that the appellant's declaration that he was not employed on the weekly claim for benefits form constituted a fraudulent misrepresentation within the meaning of the provisions of R.C. 4141.35(A). [FN5] Thus, the question presented for this Court is whether there is credible, probative evidence to support the Board's conclusion that appellant fraudulently misrepresented his employment situation during the period in question within the meaning of the statute.
R.C. 4141.01(M) provides:
"(M) An individual is 'totally unemployed' in any week during which he performs no services and with respect to such week no remuneration is payable to him."
This Court has previously construed R.C. 4141.01(M) and held that: "In order to be unemployed within the meaning of R.C. 4141.01(M), a person must have neither provided services nor received payment during the week for which he is applying for benefits." (original emphasis.) Richards v. Ohio Bureau of Employment Services (Cuy. Cty. Ct. App. May 25, 1978), No. 37419 (citing Nunmaker v. United States Steel (1965), 2 Ohio St.2d 55).
The record in the case at bar discloses that while receiving unemployment benefits, appellant provided services for the production of shields under the name "Nu-Saxon" and was involved in his union local as its president. Although appellant performed his union duties and woodworking hobby while he was employed, appellant admitted that he spent more time in these activities while he was unemployed and collecting benefits (T. 61). In fact, there was testimony appellant worked upwards of 9-10 hours a day, seven days a week, for his union by September, 1975 (T. 17, 42). Given these uncontroverted facts, appellant cannot be said to have been unemployed within the meaning of R.C. 4141.01(M) during the period in controversy. Richards v. Ohio Bureau of Employment Services, supra. Consequently, appellant's negative answer to question 5 on the weekly claim for benefits form was incorrect.
Appellant implicitly argues, however, that fraudulent mis-representation was not demonstrated in this case pursuant to R.C. 4141.35(A).
Revised Code 4141.29(D)(2)(e) provides that no individual may be paid benefits if "[h]e has knowingly made a false statement or representation or knowingly failed to report any material fact with the object of obtaining benefits to which he is not entitled; . . ."
The record does not disclose credible, probative evidence of a knowing intention on the part of appellant to deceive the Ohio Bureau of Employment Services. The evidence established, at best, appellant's lack of awareness of the perimeters of the unemployment compensation laws (T. 37-38, 48-50, 64-65). Therefore, the finding by the Board of Review of fraudulent misrepresentation was unreasonable and against the weight of the evidence.
Nevertheless, while the provisions of R.C. 4141.35(A) require a showing of fraudulent misrepresentation before recoupment of the erroneously paid benefits may be ordered, R.C. 4141.35(B)(1) [FN6] gives the administrator the power to collect any unemployment benefits which were erroneously paid "for reasons other than fraudulent misrepresentation." See Parks v. Gaines (1977), 49 Ohio St.2d 251. See also Marlow v. Bureau of Unemployment Compensation (1955), 4 Ohio App.2d 299.
We have already determined in the case at bar that benefits were in fact erroneously paid out to appellant due to appellant's unknowing failure to disclose on the weekly claim form certain activities which we find constituted employment within the meaning of R.C. 4141.01(M). Irrespective of the absence of fraudulent misrepresentation, the administrator was nonetheless empowered pursuant to R.C. 4141.35(B)(1) to order repayment of all the benefits erroneously paid to appellant.
In the present case, the administrator also ordered that appellant be ineligible for unemployment compensation for 60 otherwise valid weekly claims during the period May 23, 1976 through May 20, 1978. This penalty, while provided for under R.C. 4141.35(A), is not provided in R.C. 4141.35(B). We therefore conclude that the assessment of this penalty against appellant was contrary to law. However, because the period for which appellant was ordered ineligible for further benefits has now passed, this issue is moot.
Finally, appellant argues in his fourth assignment of error that a similar investigation of Alan Brewer, who worked with appellant in the Nu-Saxon venture, did not result in any further action against him. Appellant claims this constituted different treatment of two individuals charged on the same facts.
Whether the investigator came to the correct conclusion as to Alan Brewer is not before us on appeal. It therefore has no bearing on our disposition of this case. Appellant's fourth assignment of error is overruled.
It is ordered that appellees recover of appellants their costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.
DISPOSITION
 
Accordingly, the judgment of the trial court is modified and as modified affirmed
 
DISSENT
KRENZLER, P.J., DISSENTS:
I respectfully dissent from the majority opinion. R.C. 4141.01(M) requires that in order to be totally unemployed a person must perform no services and receive no remuneration in any given week. R.C. 4141.01(M), therefore, requires two things: no services performed and no remuneration.
A review of the record reveals that the services that appellant performed were as a union organizer and were the same during the period of employment, as well as unemployment. Therefore, I do not construe his union activities as performance of services in contravention of R.C. 4141.04(M).
As to remuneration, appellant received a total of $ 340.00 from the union during the period he received unemployment compensation. With respect to the period of time with which he received this remuneration, he should not have received unemployment compensation. However, the period of unemployment was March 22, 1975 through October 11, 1975. Remuneration of $ 340.00 would be equivalent to either two or three weeks salary at the most. Therefore, appellant should not be penalized for the entire thirty-two week period because he received remuneration for two or three weeks.
Appellant should not have received unemployment compensation for the period of time during which he was in the wooden plaque business and for the several weeks he received compensation from the labor union. But he should receive compensation for the balance of the time he was unemployed.
I would either modify the judgment and then affirm as modified, or remand the case to the trial court for modification and enter judgment for the appellant accordingly.
OPINION FOOTNOTES
1 The record discloses that business cards were printed with the name "Nu-Saxon" and the name Alan Brewer as the sales agent. Appellant's home and business (union) phone numbers were also listed on the card.
2 Appellant introduced into evidence the minutes of a union meeting on September 20, 1975 where it was decided that "all expenses incurred by John Nutting in operating the office out of Cleveland, Ohio will be paid for out of Local #7's treasury." (Exhibit 4)
3 R.C. 4141.28(G)(1) provides:
"(G)(1) Any interested party notified of a determination of any application for determination of benefit rights or a claim for benefits may, within fourteen calendar days after such notice was mailed to his last known post office address, apply in writing for a reconsideration of the administrator's or deputy's determination."
4 R.C. 4141.28(G)(2) provides in pertinent part:
". . . If a request for reconsideration is filed within such fourteen-day period, the administrator shall promptly consider such request and, after giving notice to the interested parties and informing them of their right to be present at a predetermination fact-finding interview, conducted as described in division (B) of this section, shall issue his decision to the interested parties; except that, if in his judgment the issues are such as to require a hearing, the administrator may refer any request for reconsideration to the board as an appeal." (Emphasis added.)
5 R.C. 4141.35(A) provides for the repayment of any unemployment benefits, "[i]f the administrator of the bureau of employment services finds that any fraudulent misrepresentation has been made by an applicant for or a recipient of benefits with the object of obtaining benefits to which he was not entitled . . ." (Emphasis added.)
6 R.C. 4141.35(B)(1) provides, in pertinent part:
"(B) If the administrator finds that an applicant for benefits has been credited with a waiting period or paid benefits to which he was not entitled for reasons other than fraudulent misrepresentation, the administrator shall:
"(1) Within three years after the end of the benefit year in which such benefits were claimed by order cancel such waiting period and require that such benefits be repaid to the bureau of employment services . . ."