JAMES MULLINS, Plaintiff-Appellant

VS.
BOARD OF REVIEW, et al, Defendants-Appellees
No. CA 2334
COURT OF APPEALS, FIFTH APPELLATE DISTRICT OF OHIO, RICHLAND COUNTY, OHIO
Slip Opinion
December 16, 1985
Civil Appeal from Common Pleas Court, Case No. 84-789-H
 
COUNSEL

 

For Plaintiff-Appellant: BARRY F. BRICKLEY, 13 Park Avenue West, Suite #404, Mansfield, Ohio 44902
 
For Defendants-Appellees: ANTHONY J. CELEBREZZE, JR., Attorney General of Ohio by CHERYL J. NESTER, Assistant Attorney General, 145 South Front Street, Columbus, Ohio 43215

JUDGES

 

Milligan, P.J. and Turpin, J. concur
 AUTHOR: HOFFMAN

OPINION

 

HOFFMAN, J.
 
Appellant herein is James D. Mullins. He was employed with a Cleveland company, Dun-Well, Inc., from June 19, 1984 through July 5, 1984. Appellant, along with at least two other employees of the same company arranged to ride back and forth to Dun-Well from Mansfield with one Larry Miller, a Dun-Well supervisor. The workers paid Miller Ten Dollars ($10.00) per week for the transportation.
 
After approximately one week of this arrangement, Miller moved to Cleveland and sold the car used in the arrangement to appellant. The vehicle "broke down" after a week. Appellant's attempt to repair the car failed, and further attempts to secure transportation were unsuccessful. Appellant was terminated by Dun-Well on July 6, 1984 and he filed an application for determination of benefits rights on July 9, 1984 with the Ohio Bureau of Employment Services.
 
Appellant's application for benefits was denied on the grounds that appellant had quit his employment with Dun-Well, Inc. without just cause.
 
Upon appellant's request, a reconsideration decision was issued by the administrator finding:
 
The initial determination dated August 10, 1984 is hereby amended. Claimant quit employment with Bordo Citrus Product, Inc. and with Dun-Well, Inc. without just cause. (Reconsideration decision, Sept. 7, 1984).
 
Appellant then appealed to the Board of Review and a hearing was held by telephone conducted by a referee. The Board's decision modified the administrator's reconsideration decision with the Board determining:

 

Claimant quit work with Bordo Citrus Product, Inc. to accept other employment. (Oct. 9, 1984 decision, at page 3).

 

Claimant subsequently quit work with Dun-Well, Inc. without just cause. (Oct. 9, 1984, at page 3).

 

Subsequently, the Board of Review disallowed further appeal and Mullins appealed to the Court of Common Pleas of Richland. Said court affirmed the appellee-Board of Review and the Administrator, ruling:

 

Unless there is a specific contractual agreement by employer to provide transportation to work, the duty to secure adequate transportation lies entirely with the employee. (Judgment entry July 2, 1985).

 

Appellant now raises the following two assignments of error:
 
ASSIGNMENT OF ERROR NO. I.
 
THE COURT OF COMMON PLEAS OF RICHLAND COUNTY, OHIO, ERRED IN ITS FINDING THAT THE DECISION OF THE BOARD OF REVIEW WAS NOT UNLAWFUL, UNREASONABLE, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IN FAILING TO FIN D THAT A SPECIFIC CONTRACTUAL AGREEMENT EXISTED BETWEEN THE APPELLANT AND DUN-WELL, INC. THROUGH ITS AGENT, LARRY MILLER, REGARDING TRANSPORTATION TO WORK.
 
ASSIGNMENT OF ERROR NO. II.
 
THE REFEREE OF THE HEARING SCHEDULED OCTOBER 3, 1984, ERRED IN HIS FAILURE TO COMPEL THE APPEARANCE OF APPELLANT'S WITNESS, LARRY MILLER, AS LARRY MILLER'S TESTIMONY WAS VITAL TO PROVIDING CLAIMANT WITH A "FAIR HEARING."
 
I.
 
In the instant case, the sole reason that appellant left his employment was a lack of transportation. As stated by the referee in the Board's decision:

 

Since it was claimant's failure to obtain transportation that brought about the severance of the employer/employee relationship, his separation will be considered to be a quit for purposes of this decision. (Oct. 9, 1984, decision page 3).

 

Having reviewed the record, particularly appellants' testimony regarding statements of Larry Miller regarding the effect of no transportation, we concur with the court below in upholding the decision of the Board of Review. The statements of Larry Miller do not rise to the level of a bona fide contract between Dun-Well and appellant which either provide transportation to appellant or provide appellant with a status of being "laid-off, rather than "quit", if and when the transportation ceased.
 
As succinctly stated by the court below, without such an agreement, appellant's termination must be considered a separation without just cause initiated by appellant.
 
This assignment of error is overruled.
 
II.
 
There was no prejudice to appellant by the failure of Larry Miller to testify at the instant hearing. The record demonstrates that the referee "gave" appellant the benefit of Miller's testimony and allowed appellant to adduce it at said hearing in a light most favorable to appellant. The Board of Review made Miller's testimony (as adduced by appellant) a part of its decision as follows:

 

Claimant could not find any other transportation to work and he conveyed this information to Mr. Miller who replied that if claimant could not find a way to the job site, he would have to consider himself to be laid-off. (Oct. 9, decision, at page 2 Finding of Fact).

 

We agree with the court below that Miller's statements to appellant do not constitute an employee/employer contract providing appellant with a "lay-off' status arising from appellant's failure to find transportation to Dun-Well.
 
This assignment of error is overruled. Both of appellant's assignments of error are overruled, and the judgment of the Court of Common Pleas of Richland County, Ohio is affirmed.
 
Milligan, P.J. and Turpin, J. concur.
 
JUDGMENT ENTRY
 
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Richland County, Ohio is affirmed.

DISPOSITION

JUDGMENT: Affirmed