WASHINGTON COUNTY COMMON PLEAS COURT
 
DONALD J. ARNOLD, etal., CASE NO. 97AA192
Plaintiffs,
JUDGE SUSAN BOYERi
Vs. RULING ON ADMINISTRATIVE
APPEAL
MAGNETIC SPECIALTY INC.,
Defendant
 
This cause came on for consideration on January 30, 1998, of an administrative appeal from a denial of unemployment compensation to the Plaintiffs. The Plaintiffs are on strike against their employer, Magnetic Specialty Inc. The Plaintiffs went on strike after their employer refused to recognize or bargain with their union after an election to organize the plant.
 
The facts in this case are not in dispute. The Plaintiff employees of the MST held an election and voted to be represented by the United Steelworkers of America on. The Union was Certified on September 27,1995. The employer MST refused to recognize the union and sent a letter to the union stating it's position shortly before November 24,1995. MST was ordered to recognize and bargain with the union an March 29, 1996, by the NLRB. The employer unsuccessfully appealed the NLRB order. The appeal was still pending at time the strike commenced. The employees continued to work for MSI until. On January 14, 1997, the employees notified MST of their intention to strike on March 2, 1997, unless the union was recognized and negotiations commenced. The employer responded with a request that the union take no action until the resolution of it's appeal, or that another election be held. The employer was willing to continue to pay the same wages and to offer the same benefits. The union found the proposal of the employer unacceptable and struck the employer on March 2. 1997. After the strike commenced the employer had work available at the same wages and did not refuse work to the employees who struck the plant.
 
O.R.C. Section 4141.29(D) provides that an employee is not eligible for unemployment compensation if "his unemployment is due to a labor dispute other than a lockout." It is therefore the general rule that an employee on strike is not entitled to unemployment compensation. However, where the work stoppage is a result of unreasonable actions on the part of the employer which change the status quo and result in conditions which an employee should not accept, then unemployment compensation is appropriate. The classic case is a "lock out" where the employer close his doors and locks out his employees. Ohio has long recognized that where this occurs, unemployment compensation is available even during a labor dispute.
 
The Courts have also found that unemployment compensation is available during a constructive lock out. A constructive lockout is found to exist if the employer unreasonably changes the status quo to the detriment of workers during negotiations. Such a basis has been found in reduction of wages, changes in benefits, etc. Not all changes in employment terms and conditions by an employer during negotiations will constitute a constructive lockout. The changes must be without compelling reason on the part of the employer, and result in conditions such that are the employees "could not be expected to work under them and, in reason ... have no course open to them but to leave their employment." Zanesville Rapid Transit Inc. v. Bailey (1958). 168 Ohio St. 351 at 355, 7 Ohio Op. 2d 119 at 122.
 
A constructive lock out during negotiations is thus an exception to the general rule that unemployment is not available where the employee ceases to work due to a "labor dispute." The issue is one or first impression in Ohio where there is a labor dispute, and the employer refuses to recognize or negotiate with the union. The employees threatened to strike unless the union was recognized. The employer offered two options to the union to avoid a strike. The employer offered to continue to offer the same wages and benefits to employees and the union was asked to agree to either hold a new election or to wait untiI the employer's appeal was decided. Thereafter, and continuously during the strike, the employer offered work at the same wages and benefits.
 
If the employer had made its demand for a new election or a delay in negotiations until the appeal was completed before the union strike threat there is little question that the employer demand would have created a change is the status quo that the union employees would not have been required to accept. The demand for a new election would have created a situation where the employees were required to give up a substantial right that they would not have been in reason required to accept. The demand that the union wait until the resolution of the appeal was for an indefinite and unreasonable time. The problem for the employees is that they first threatened to strike unless the employer agreed to immediate negotiations. It is the action of the employees that is then the focus of the inquiry.
 
The workers offer no case support that such an offer constitutes a change in the status quo. The cases cited by the employees do not support their position. The only state that treats a refusal to negotiate as a constructive lock out and thus not a barrier to unemployment compensation does so by statute. The only case cited that deals with a refusal to negotiate is a Califorifia case the results of which do not support the employees. In that case a group of employers wished to bargain as a group with the union. The union refused. The employer in order to force the group negotiation reduced wages. The court found that the economic sanctions imposed by the employers constituted a constructive lock out, a change in the status quo and granted unemployment compensation. Thus, economic sanctions to force bargaining are a change in status quo. Here the union imposed economic sanctions in order to force bargaining by the employer. The unions argument that the refusal to bargain during an appeal of an election and a refusal to recognize the union was legally a change in the status quo that entitles employees to unemployment compensation is simply not supported by case law from any jurisdiction that the Court has been able to find.
 
The court finds that the decision of the Unemployment Board is supported by the evidence and is in compliance with the law. The appeal is DENIED. The attorney for the Appellee to journalize. Costs assessed against the appellants.
 
Judge Susan E. Boyer
 
cc.
T. Kircher
P. Hoskins
G.R. King/J.K. Stock