Ernest D. Anderson, et al
v.
Fisher Body Division, et al.
 
Ohio Court of Appeals, Fifth District, Richland County. No. 1230, undated.

Before PUTMAN, P.J. and
VAN NOSTRAN and RUTHERFORD, JJ
 
Labor dispute - Recall of employees.- Substantial evidence did not support a contention that just before a strike an employer recalled 192 employees who had previously laid off, merely to subject them to provisions of the law imposing a benefit disqualification upon employees whose unemployment was the result of a labor dispute. Under the law, if it was established that a claimant was laid off and not recalled to work prior to the labor dispute, a labor dispute would not render the employee ineligible for benefits. Accordingly, the employees were disqualified from benefits because their unemployment was the result of a labor dispute.
 
Clayman & Jaffy for plaintiffs-appellants. George T. Hall for Fisher Body Division. James Uprichard for BES.
 
By THE COURT: The issue in this appeal appears from the assigned errors:
 
1. The Court of Common Pleas erred in failing to find that the decision of the Board of Review was unlawful, unreasonable and against the manifest weight of the evidence.
 
2. Where employees were on layoff and are recalled by their employer immediately prior to the expiration of a collective bargaining agreement and the commencement of a strike and the employer has no work for the recalled employees, it is error to deny them unemployment benefits.
 
The Board of Review on pages 2 through 5 of their decision stated the facts as follows:
 
"The claimants herein, prior to a strike which began on September 14, 1970 were employed by General Motors Corporation at its Fisher Body Division Plant in Mansfield, Ohio. They were employed in skilled trades classifications in such departments as jig and fixture and mechanical devices. The Mansfield operation is not an assembly plant but fabricates parts that are sent to virtually all General Motors assembly plants.
 
In early September 1970, Production of parts for the 1971, model year cars had begun. A slowdown by workers that began about August 11th had compounded production problems, and in an effort to satisfy plants, some shipments were being made using high cost truck and air transportation.
 
Most, if not all of the claimants had been laid off on or about July 31, 1970, when tooling, for the 1971 model year production was completed. During the period from September 8th through September 14, 1970, a total of 192 employees, including the claimants were recalled from layoff and had reported for work. As of September 14, 1970, about 120 skilled trades people had not been recalled. About 14 of the claimants worked on either Saturday, June l2th or Sunday, June 13, 1970, or worked on both days and were paid, overtime rates. (See employer's exhibit # 3). Production schedules are projected for the current week plus the next seven weeks, based on assembly plant schedules that are furnished by computer from the employer's Detroit headquarters.
 
The contract between the employer and the International Union, UAW, expired at 11:59 p.m. on September. 14, 1970, Negotiations on local issues had started in July and on September 1, 1970, the membership of Local #549 voted to strike upon the expiration of the contract. In early September, a decision was made by the International Union that General Motors would be struck nationally at the same time, but public announcement that General Motors would be the strike target was not made until September 13, 1970. Sometimes in previous years, when a contract expired and a strike vote had been taken, production continued after the contract expiration date. In the case at hand, the employer recalled laid off personnel needed, to maintain production schedules that were based upon an assumption that production would not be interrupted on the September 14, 1970 contract expiration date.
 
When an employee is recalled from layoff, he has three days in which to accept the recall and report for work. Consequently, when recalls are being made the employer can never be certain as to the number of employees who will be on the job on a given day. Because of the uncertainty of having the required personnel for an operation, along with the fact that equipment may not be ready for operation, it happens at times that a recalled employee cannot be immediately placed in the work assignment for which he was recalled. In the present instance, the claimants were, upon recall in September, in many cases assigned to sweeping floors or to do other work not in their classification. For the most part, the claimants replaced employees who were temporarily in training in skilled trades classifications and had been transferred back to production work.
 
Although more skilled trades people are needed when tooling for the next succeeding model year is being done and when production is starting at the beginning of a model year, some such people are needed after production is well under way, the number varying in proportion to the amount of production. An individual may be transferred from one skilled classification to another, as needs vary during the course of a year.
 
The strike which begarn at 11:59 p.m. on September 14, 1970 involving more than 2500 hourly rate employees, was settled and production was resumed on November 23, 1970. Most of the claimants herein were recalled on or about the latter date and were laid off on or about December 4, 1970. As of November 23 1970, it was planned to make extensive tooling changes for the 1972 car models but these plans were cancelled on December 4, 1970.
 
It is stipulated by the parties that some of the claimants had earnings during a week in issue which exceeded the weekly benefit amount as found by the Administrator. Also, in some instances, claimants had earnings during the week in issue but not in an amount which exceeded the weekly benefit amount."
 
[Discussion]
 
Appellants claim that the employer, General Motors, recalled one hundred and ninety-two employees, who had been previously laid off, merely to subject them to the disqualification of Section 4141.29(D)(l)(a), Revised Code. Section 4141.29(D)(1)(a) reads in pertinent part as follows:
 
"(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:
 
(1) For any week with respect to which the administrator finds that:
 
(a) His unemployment was due to a labor dispute other than a lockout at any factory, establishment, or other premises located in this or any other state and owned or operated by the employer by which he is or was last employed; and for so long as his unemployment is due to such labor dispute. * * * If it is established that the claimant was laid off for an indefinite period and not recalled to work prior to the dispute, or was separated by the employer prior to the dispute for reasons other than the labor dispute, or that he obtained a bona fide job with another employer while the dispute was still in progress, such labor dispute shall not render the employee ineligible for benefits."
 
We overrule both Assignments of Error and affirim the judgment. Assuming arguendo, but not deciding that the motives of the employer are critical, it is our finding that the record in this case does not exclude as a reasonable hypothesis that the employer acted in good faith in recalling the employees.
 
While there is evidence frorn the circumstances which might lead some triers of the fact to another conclusion, the resolution of this issue depends, in the final analysis, upon the credibility of the witnesses.
 
This record fails to demonstrate that the decision of the Board of Review was either unlawful, or unreasonable or against the manifest weight of the evidence.
 
[Decision)
 
For the foregoing reasons, both assigned errors are overruled and the judgment of the Common Pleas Court is affirmed.