Unemployment Compensation Review Commission

Michael L. Silberstein, Appellant-Appellant,

Administrator, Ohio  Bureau of Employment Services,


No. 89AP-303
1989 Ohio App. LEXIS 3740
September 26, 1989, Decided

APPEAL from the Franklin County Common Pleas Court.



MR. PATRICK A. T. WEST, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, and MR. JOHN SCHUBERT, for appellee.



MARTIN, J., REILLY and BRYANT, JJ., concur. MARTIN, J., of the Fairfield County Court of Common Pleas, sitting by assignment in the Tenth Appellate District.






On April 11, 1985, appellant applied to the Ohio Bureau of Employment Services for unemployment benefits. According to later testimony, appellant lost his job as vice president of purchasing and traffic at Columbus Steel Supply Company in February 1985, when the company went bankrupt. Shortly, after losing his job, appellant started a company called Ohio Pipe and Steel Corporation. Appellant was the company's only employee. Appellant described himself as a broker for person in the steel industry; the Unemployment Compensation Board of Review's findings of fact states appellant "bought and sold steel to distributors or other users of steel products." Appellant later testified that he worked approximately sixty hours a week (or forty to seventy hours a week) trying to turn his company into a "full time business," although he was not yet earning money from the company.


On April 25, 1985, the Bureau of Employment Services denied appellant unemployment benefits for the week ending April 13 and April 20. On July 19, referee affirmed the denial of benefits. The bureau later also denied appellant's claims for April 20 to June 15. On November 20, a referee affirmed the denial of these benefits.


Appellant appealed the decisions to the Unemployment Compensation Board of Review on August 2 and December 3, 1985. The board denied appellant's claims on May 23 and August 2, 1988. Appellant then appealed the board's to the Franklin County Court of Common Pleas, which affirmed the board. Appellant now appeals to this court. Appellant's sole assignment of error states:


"The court of common pleas erred in finding that the decisions of the Unemployment Compensation Board of Review were not unreasonable, unlawful, or against the manifest weight of the evidence."


An appellate court, reviewing a determination of the court of common pleas that the board's decision was not against the manifest weight of the evidence, may reverse only if the court of common pleas abused its discretion. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159. "In this context, the meaning of the term 'abuser of discretion' connotes more than an error judgment, it implies a decision without a reasonable basis, one which is clearly wrong." Id. at 161-162.


In the present case, the common pleas court affirmed the board's decision that appellant's unavailability for work precluded his eligibility for benefits. The board and the court relied upon R.C. 4141.29(A) which states:


"No individual is entitles to a waiting period or benefits for any week unless he:


" * * *


"(4)(a) Is able to work and available for suitable work and is actively seeking suitable work either in a locality in which he has earned wages subject to chapter 4141. of the Revised Code, during his base period, of if he leaves such locality, then in a locality where suitable work is normally performed." (Emphasis added.)


The board based its unavailability determination on the substantial amount of time appellant spent on his own business. Appellant, though, contends that, despite the amount of time he spent trying to start Ohio Pipe and Steel, he was still available for work. Appellant testified before a referee that "I could quit that particular business at any time. Other words, if I found suitable work, I could quit that business and stop it."


Appellant is correct to the extent that the mere fact that a claimant is working does not automatically render the claimant ineligible for benefits. "Under the law, and as a matter of public policy, the right to unemployment benefits is not conditioned upon complete idleness." MacMillian v. Unemployment Comp. Bd. of Review (1983), 10 Ohio App. 3d 290, 292. A claimant who is partially, in contrast to totally, unemployed, may still collect benefits. Rini v. Unemployment Comp. Bd. of Review (1983), 9 Ohio App. 3d 214-215; R.C. 4141.01(R). See, also, R.C. 4141.01(M) (definition of "totally unemployed"); R.C. 4141.01(N) (definition of "partially unemployed").


However, we conclude that the court of common pleas did not abuse its discretion when it found that the time appellant devoted to self-employment rendered him unavailable for other work. Appellant cites MacMillan, supra, to support his contentions. However, MacMillan is factually distinguishable. In MacMillan, the claimant was working only approximately twenty hours per week and was working in a job that differed substantially from his previous job. Id. at 292. Here, the claimant was working more than forty hours per week and in a job that was similar to his previous employment in the steel industry.


The availability determination depends upon the facts and circumstances of each case. Leonard v. Unemployment Comp. Bd. of Review (1947), 148 Ohio St. 419, paragraph one of syllabus; Bergstedt v. Steinbacher (1985), 27 Ohio App. 3d, 93, 97. Nevertheless, we find it significant that, under similar facts, courts found that significant amounts of time spent in self-employment made claimants unavailable for suitable work. See Bergstedt, supra, at 97; Administrator Ohio Bureau of Employment Services v. Veres (Mar. 18, 1988=6), Mahoning App. No. 84 C.A. 180, unreported. In light of the factual nature of the inquiry and the case law, we are unwilling to find that the decision of the court of common pleas was "clearly wrong." Angelkovski, supra. We therefore overrule appellant's assignment of error.


Based on the foregoing, we affirm the judgment of the trial court.


Judgment affirmed .