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Unemployment Compensation Review Commission

COUNTY OF CUYAHOGA

NO. 4 7 4 3 0

COBBLEDICK BUICK, INC. JOURNAL ENTRY
AND
OPINION

Plaintiff-Appellee

VS.

BOARD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, ET AL.

Defendant-Apellants

DATE OF ANNOUNCEMENT OF DECISION: APR 19 1984

CHARACTER OF PROCEEDING: Civil appeal from Common Pleas
Court Case No. 044,025

JUDGMENT: Affirmed.

DATE OF JOURNALIZATION:

APPEARANCES:

For Plaintiff-Appellant: Aubrey B..Willacy, Esq.
Timothy A. Marcovy, Esq
700 Western Reserve Bldg
1468 West Ninth Street
Cleveland, Ohio 44113

For Defendant-Appellees: Q. Albert Corsi , Esq .
810 State Office Building
615 West Superior Avenue
Cleveland, Ohio 44113

For Appellee: Simon Manning, Pro Se
31502 North Marginal, Road
Unit E
Willowick , Ohio 44094

ANN McMANAMON, J.:

Cobbledick Buick, Inc. ("Cobbledick") , appeals a final Judgment of the Cuyahoga County Common Pleas Court affirming a decision of the Board of Review, Ohio Bureau of Employment Services, in favor of a discharged Cobbledick employee. The Board upheld a determination by the administrator that claimant/appellee Simon Manning was eligible to receive unemployment compensation benefits.

Manning applied for unemployment benefits following the termination of his employment with Cobbledick on December 5, 1981 where he had been sales, finance, and insurance manager. A hearing was conducted on March 26, 1982, after which the referee issued an order affirming the administrator's decision on reconsideration. The referee based his decision upon R..C..4141.29(D)^1/ and reasoned that:

"... Cobbledick ... felt that his [Manning'sl attendance record of approximately one (1) day of absence per month was excessive. Most of claimant's absences were due to a chronic vascular headache for which the claimant was under doctor's care. in addition, claimant's last absence was due to a cold from which he was suffering all week. While the discharge of the claimant may have made good business sense on the part of Cobbledick Buick, Inc., it is not determinative of the claimant's discharge as far as unemployment benefits are concerned. As claimant's absences were beyond his control, it must be held that his discharge was without just cause in connection with work.No disqualification for benefits should be imposed."

^1/ 4141.29(D) provides in pertinent part:

"(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:

" (2) For the duration of his unemployment if the administrator finds that :

" (a) He quit his work without just cause or has been discharged for just cause in connection with his work ....

"***"

The Board of Review disallowed further review of the matter and an appeal was taken to the Common Pleas Court pursuant R.C. 4141.28(0). The trial court affirmed the Board's decision and appellant filed a timely notice of appeal to this court raising three assignments of error:

THE TRIAL COURT ERRED IN FINDING THAT THE DECISION OF THE BOARD OF REVIEW, FINDING THAT THE CLAIMANT, APPELLEE, SIMON MANNING, WAS DISCHARGED WITHOUT JUST CAUSE IN CONNECTION WITH HIS WORK, SUCH THAT NO DISQUALIFICATION FOR BENEFITS SHOULD BE IMPOSED, WAS LAWFUL AND REASONABLE.

III

THE TRIAL COURT ERRED IN OVERRULING AND DENYING APPELLANT'S MOTION FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.

We will consolidate assignments one and two since they raise a single issue for our consideration.

Appellant concends that the Board's decision is against the manifest weight of the evidence, is unreasonable and contrary to law. We disagree.

At the hearing before the referee, appellant was represented by counsel who conducted the direct examination of three witnesses. Appellant's principal witness was Frank Montisano, the vice president and general manager of Cobbledick. He testified that Manning was hired as sales and "F and I" manager on March 10, 1980. According to Montisano, Manning's daily services, including specialized computer skills, were essential to the profitable operation of the car dealership (Tr. 14). Montisano admitted that he was not dissatisfied with appellee's work performance (Tr. 15). Nevertheless, when Manning called in sick on December 5, 1981, his second absence since a warning in early November 1981, Montisano fired him. Montisano stated that the purpose of the November meeting with appellee was to voice company concern about Manning's absenteeism because of vascular headaches. It was company policy to allot one day of sick leave per year. Although he kept no records, Montisano testified that the appellee's wife called at least once a month to report that her husband's headache prevented his coming to work that day (Tr. 7). At no time did Montisano request medical confirmation of appellee's condition (Tr. 8), The testimony of Bill Batch, a Cobbledick salesman, demonstrated appellee's recurring headache problem was well known to his co-workers at the dealership. As a joke, a group of Cobbledick salesmen purchased a bottle of Midol for appellee, and placed it atop his desk each time he called in sick because of headaches (Tr. 22).

Appellee, who was not represented by counsel at the hearing, denied frequent absences and that he missed work by reason of headaches. He claimed that on December 5th he was absent as a result of a cold he had for four or five days. His wife, however, admitted that she called Cobbledick on two occasions to report her husband's
absence because of headache. She further stated that he had suffered from vascular headaches intermittently during the previous ten years and that he was medically treated with codeine. (Tr.56-57).

We note that the referee's findings are based almost entirely on the testimony of Montisano and are supported in their entirety by the record. ^2/

Appellant contends that the decision that there was just cause for terminating appellee's employment pursuant to R.C. 4141.29.(D) (2)(a) is erroneous as a matter of law. In support of his argument appellant cites Flake v. Board of Review (December 19, 1981), Cuyahoga Cty. App. No. 43395, unreported, and Turay v. Board of Review (June 12, 1980), Cuyahoga Cty. App. No. 41543, unreported. Both of these cases are inapposite to the case at bar.

In Flake, the claimant failed to justify her absences with medical proof, as required by her employer. At the hearing before the Board, she presented medical records which supported some, but not all,of her absences. The court held that there was just cause for discharge due to excessive absenteeism. In the subject case there was no dispute at the referee's hearing as to the claimant's physical ailment, no any claim that he was malingering.

^2/On application for appeal to the Board of Review pursuant to R.C. 4141.28,appellant claimed that Manning's undisclosed history of headaches constituted a fraud upon his employer. We note that the supplemental material
(Exhibit B) upon which appellant purportedly relied is a form required by the Industrial Commission, which provides:

"***This information will in no way affect your' employment with us and, except for reporting it to the bureau of workers' Compensation as we are required to do by law, it will be held confidential."

Further, appellee did not suffer from any of the listed illnesses. We fail to see the relevance of this document to appellant's argument.

In Turay this court upheld a denial of claimant benefits upon a finding of just cause for a disciplinary suspension which led to claimant's resignation. The evidence showed that the employee gave no advance notice of his absence nor did he provide his employer with requested documentation of the cause of his claimed illness. When questioned by his supervisor about unexplained absences, the employee responded with insubordination and threats.

Unlike the employers in Flake and Turay, appellant presented no evidence that Manning ever neglected to give proper notice of illness. Cobbledick now contends that appellee's failure to provide medical documentaion at the hearing bars his claim. However, since appellant did not challenge the bona fides of appellee's headaches, we find that there was no necessity for appellee to provide medical evidence of his condition. See In Re Claim of Wilkinson, (C.A. 3rd Dist., Nov. 20, 1981), No. 81.

The remaining issue raised by Cobbledick in this assignment of error is whether or not genuine illness is just cause for termination of employment so as to bar an award of unemployment compensation.

In Schultz v. Herman's Furniture (1976), 52 Ohio App. 2d 161, the Court of Appeals for Erie County held that absenteeism caused by bona fide illness, reported to an employer, is not just cause for discharge. See also Atlas v. Giles (C.A. 6th Dist., June 12, 1981), No. 79-CV-542; Sellers v. Board of Review (C.A. 10th Dist., ApriI 21, 1981), No. 80-AP-741.

We find that the standard applied by the Board of Review to the facts of this case is a correct proposition of law and that the decision of the Board of Review is lawful, reasonable and supported by the manifest weight of the evidence. Assignments of error one and two are not well taken.

In his third assignment of error appellant seeks a reversal of the court's decision affirming the Board of Review because the court's decision affirming the Board of Review because the court provided no findings of fact and conclusions of law as requested by Cobbledick.

The trial court journalized the following order:

"On 8-2-83 having considered the briefs and transcript in the instant case, this court finds that the decision of the Board of Review was lawful, reasonable and consistent with the manifest weight of the evidence. The decision of the Board of Review is thus affirmed."

Appellant made a timely request for findings of facts and conclusions of law pursuant to Civ. R. 52 ^3/ which the court denied.

R.C. 4141.28(0) permits an appeal of the decision of the Board of Review to the trial court. Review by the trial court is limited in scope to a determination of whether the decision of the Board is unlawful, unreasonable, or against the manifest weight of the evidence.

^3/ Civ. R. 52 provides in pertinent part:

"When a request for findings of fact and conclusions of law is made, the court in its discretion, may require any or all of the parties to submit proposed findings of fact and conclusions of law; however, only those findings of fact and conclusions of law made by the court shall form part of the record."

The determination of purely factual questions is primarily within the province of the referee and the board of review. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511; Kilgore v. Board of Review (1965), 2 Ohio App. 2d 69. Where the trial court simply reviews the record of the Board of Review, Ohio Bureau of Employment Services, and affirms the decision based on legal conclusions, Civ. R 52 does not apply. See Jandecka v. Petre (October 27, 1983), App. No. 46623, unreported. In the instant case, appellant's failure to present evidence at the hearing challenging claimant's illness, foreclosed further appeal of the referee's substantive factual findings. (See infra pp. 4 and 5). Since the issues addressed on appeal involve legal conclusions only, the trial court did not err in refusing to provide findings of fact and conclusions of law.

This assignment of error is not well taken.

Affirmed.