IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
ANDREA ASHWELL, ET AL. :
Plaintiff-Appellants : C.A. CASE NO. 20522
vs. : T.C. CASE NO. 03CV242
DIRECTOR, OHIO DEPT OF JOB : (Civil Appeal from
AND FAMILY SERVICES, ET AL. Common Pleas Court)
Defendants-Appellees :
. . . . . . . . .
O P I N I O N
Rendered on the 22nd day of April, 2005.
. . . . . . . . .
Frederick G. Cloppert, Atty. Reg. No. 0010372; William J. Steele,
Atty. Reg. No. 0022823; Rory P. Callahan, Atty. Reg. No. 0072021,
225 East Broad Street, Columbus, Ohio 43215
Attorneys for Plaintiffs-Appellants
Charlett Bundy, Asst. Atty. Gen., Health & Human Serv. Section, 615
West Superior Avenue, 11th Floor, Cleveland, Ohio 44113-1899,
Atty. Reg. No. 0051842
Attorney for Defendant-Appellee
Laura R. Anderson, Jones Day, North Point, 901 Lakeside Avenue,
Cleveland, Ohio 44114-1190, Atty. Reg. No. 0067463
Attorney for Defendant-Appellee Employer
General Motors Corporation
. . . . . . . . .
GRADY, J.
{¶ 1} This is an appeal from a judgment of the court of common
pleas that affirmed a decision of the Unemployment Compensation
Review Commission denying employment compensation benefits. Upon
review, we find no error in the trial court’s decision, and
therefore will affirm the judgment from which the appeal was taken.
{¶ 2} Plaintiff-Appellant, Andrea Ashwell, is one of 482
claimants for unemployment compensation benefits who were employed
by General Motors Corporation at its manufacturing facilities in
Dayton in 1998. The claimants were also members of the United Auto
Workers (UAW) labor union. The terms and conditions of their
employment by GM were governed by a National Collective Bargaining
Agreement (“National Agreement”) between GM and the UAW dated
November 2, 1996.
{¶ 3} The National Agreement contains several provisions
pertinent to the matters at issue in the appeal. Under the heading
“Vacation Time Off Procedure,” paragraph (202) of the National
Agreement provides:
{¶ 4} “Management recognizes the desirability of providing
vacation time off with pay, up to the vacation entitlement to which
the employee’s seniority will entitle them on December 31 of the
current year, in a manner that preserves the maintenance of
efficient operations while giving consideration to the desires of
the employee.
{¶ 5} “(202a) During each year of this Agreement, the
Corporation has designated the following days to be included in an
Independence Week Shutdown period:
1997
“Monday, June 30 - Independence Week
Shutdown Day
“Tuesday, July 1 - Independence Week
Shutdown Day
“Wednesday, July 2 - Independence Week
Shutdown Day
“Thursday, July 3 - Independence Week
Shutdown Day
3
1998
“Monday, June 29 - Independence Week
Shutdown Day
“Tuesday, June 30 - Independence Week
Shutdown Day
“Wednesday, July 1 - Independence Week
Shutdown Day
“Thursday, July 2 - Independence Week
a. hutdown Day
1999
“Tuesday, July 6 - Independence Week
Shutdown Day
“Wednesday, July 7 - Independence Week
Shutdown Day
“Thursday, July 8 - Independence Week
Shutdown Day
“Friday, July 9 - Independence Week
Shutdown Day”
* * *
{¶ 6} “(202d) Employees who are not scheduled to work during
any portion of the Independence Week Shutdown Period shall be paid
up to eight (8) hours of pay for each of the Independence Week
Shutdown Period days they are not scheduled to work, up to a
maximum of thirty-two (32) hours, which will be calculated on the
basis of the employee’s regular rate of pay, plus attached night
shift premium, not including overtime, as of the employee’s last
day worked prior to the Independence Week Shutdown period provided:
{¶ 7} “(1) The employee has seniority in any General Motors
plant as of the date of each of the Independence Week Shutdown
Days,
{¶ 8} “(2) The employee is on the active rolls and would
otherwise have been scheduled to work if it had not been observed
as an Independence Week Shutdown Day,
4
{¶ 9} “(3) The employee works their last scheduled work day in
the pay period prior to and their next scheduled work day in the
pay period after the pay periods of Independence Week Shutdown and
Plant Vacation Shutdown Week.
{¶ 10} “Employees shall receive such pay in the pay period
following the Independence Week Shutdown Period.
{¶ 11} “(202e) Failure to work either their last scheduled work
day in the pay period prior to or their next scheduled work day in
the pay period after the pay periods of the Independence Shutdown
and Plant Vacation Shutdown Week will disqualify the employee for
Independence Week Shutdown days which follow or precede such
scheduled work day.”
{¶ 12} At paragraph (203), the National Agreement provides that
“[e]mployees shall be paid for specified holidays” in the years
1996, 1997, 1998, and 1999 following the effective date of the
National Agreement. One of holidays specified is July 4, 1998.
The paragraph further provides that employees will be paid
“providing they meet all of the following eligibility rules unless
otherwise provided herein:
{¶ 13} “(1) The employee has seniority as of the date of each
specified holiday and as of each of the holidays in each of the
Christmas holiday periods, and
{¶ 14} “(2) The employee would otherwise have been scheduled to
work on such day if it had not been observed as a holiday, and
{¶ 15} “(3) The employee must have worked the last scheduled
work day prior to and the next scheduled work day after each
specified holiday within the employee’s scheduled work week. For
each Christmas holiday period, the employee must have worked the
last scheduled work day prior to each holiday period and the next
scheduled work day after each holiday period.”
{¶ 16} In early 1998, employees at other GM facilities that
produced parts for the Dayton GM plants went on strike. This
eventually resulted in a shortage of parts at the Dayton plants.
Production at the Dayton plants was halted, and beginning June 5,
1998, Plaintiff-Appellant and the other claimants were laid off by
GM for lack of work. They were not recalled by GM and did not
return to work until various dates following August 1, 1998. They
received their first regular paychecks on August 13, or 14, 1998.
{¶ 17} As a part of the settlement agreement that ended the
strikes at the other GM plants, GM and the UAW entered into a
Memorandum of Understanding (“MOU”) dated July 28, 1998. It
provides:
{¶ 18} “MEMORANDUM OF UNDERSTANDING ONE TIME SPECIAL PAYMENT
{¶ 19} “As a result of these negotiations and without prejudice
to the position taken by either party, and without setting any
precedent in the disposition of any other case involving similar
circumstances, the parties agree to the following:
{¶ 20} “Employees who were on strike or layoff status at General
Motors locations due to the labor dispute at the Flint Metal Center
and Delphi E. Flint East and who did not receive Independence Week
Shutdown and Holiday Pay as a result of being on said layoff or
strike and were otherwise entitled to these pay provisions as
stipulated in the GM-UAW National Agreement, shall receive a one
time special payment in the amount they would have been entitled to
had they not been on strike or layoff.”
{¶ 21} “This payment will be made in an expeditions manner and
taxed as a regular wage payment in accordance with Document No. 81
of the GM-UAW National Agreement.
{¶ 22} “This payment shall initially be made by General Motors.
Thereafter, payments otherwise required by Paragraph IIIA of the
Memorandum of Understanding Joint Activities, 1996 GM-UAW National
Agreement, shall be waived until General Motors is reimbursed for
the total amount paid to employees as a result of this Memorandum.
{¶ 23} “Further, the parties recognize that these payments may
result in employees being ineligible for unemployment compensation
already received. Employees impacted by such overpayment of
unemployment compensation will be responsible to repay the State
that provided the unemployment compensation.
{¶ 24} /s//s/
{¶ 25} International Union, UAW General Motors Corporation”
{¶ 26} It is undisputed that, because they were in lay-off
status, Plaintiff-Appellant and the other claimants could not
satisfy the condition imposed by the National Agreement that they
must have worked the shifts prior to and following the four day
Independence Week Shutdown and the July 4 holiday in 1998 in order
to be paid for the five days concerned. It is also undisputed
that, by reason of the MOU, employees were paid amounts which they
would have received for that same five-day period, and that the
amount each was paid was in excess of the unemployment compensation
for which each would have been eligible for the five days. Regular
payroll deductions were made from the One Time Special Payment by
GM, except for union dues, which were not payable during layoff.
The employees also received seniority credits for the period.
{¶ 27} Plaintiff-Appellant and the other claimants became
eligible to receive unemployment compensation benefits when they
were laid off by GM, from the date each was laid off until he or
she was recalled to work. GM subsequently objected to payment of
benefits for the period June 29 through July 3, 1998, arguing that
the One Time Special Payment each claimant received pursuant to the
MOU was remuneration that disqualified them from receiving
benefits. On review, the Director of the Department of Job and
Family Services (“Director”) agreed and disallowed benefits for the
period June 29 through July 3, 1998.
{¶ 28} The claimants, including Plaintiff-Appellant, appealed
the Director’s decision to the Unemployment Compensation Review
Commission (“Commission”). On December 12, 2002, the Commission
rendered a decision disallowing benefits for the period concerned
pursuant to R.C. 4141.31(A)(5). In its decision, the Commission
stated:
{¶ 29} “The question to be determined by the Review Commission
is whether the monies received by claimants are deductible as
remuneration in the form of holiday pay. This special payment was
negotiated by General Motors Corporation and the United Auto
Workers. The weight of the evidence before the Review Commission
is that the purpose of this payment was to replace the lost
Independence Week Shutdown Period pay and Independence Holiday pay.
Certain prerequisites for receiving this pay could not be met by
employees because of the strikes and layoff situations existing at
the time. In the negotiation process, it appears that the parties
agreed to waive these impossible prerequisites and pay the
unemployed workers a special payment calculated to make them whole
for loss of the holiday payments. Deductions were made by the
employer in the same manner as regular holiday payments would have
been handled and employees received credit, including additional
vacation entitlement, under the National Agreement for these
monies. The circumstances which allowed the employer to recoup
these monies via reduced contributions to another fund does not
alter the nature of the payments. That the parties believed and
intended these payments to replace the Independence Week Holiday
pay is evidenced by Employer Exhibit #1, Shop Committee-Information
Flyer, issued August 5, 1998, wherein the following statement was
made:
‘Independence Week Holiday Pay
{¶ 30} ‘The International Union and Corporation have agreed
to pay the negotiated settlement concerning the Independence
Week Shutdown Week. This payment will be included in the
regular payroll checks on August 14, 1998. Even though you
only receive one check, taxes will be deducted from the
individual amounts of the two weeks, as per your regular
payroll tax status.’
{¶ 31} “Based upon the weight of the evidence before the Review
Commission, it is held that the Director properly disallowed all
claims for the weeks in issue because claimants received
remuneration in the form of holiday pay or allowance in excess of
their weekly benefit amount.” (Decision, pp. 8-9).
{¶ 32} The claimants appealed the Commission’s decision to the
court of common pleas. The court found that the MOU modified the
terms of the National Agreement by waiving its requirements that
the claimants work the shifts before and after the Independence
Week Shutdown and Holiday in order to be paid for the five days
concerned. The court noted that such an intent is manifested in
the flyer quoted in the Board’s decision. On that basis, the court
held that the pay the claimants received was “remuneration” for
vacation or holiday which was allocated to that week, and per R.C
4141.31(A)(5) the amount of unemployment compensation benefits
otherwise due each claimant must be reduced by the amount of the
One Time Special Payment each claimant received. Therefore, the
court affirmed the Commission’s decision.
{¶ 33} Plaintiff-Appellant Ashwell filed a timely notice of
appeal on her behalf and on behalf of the other 481 claimants.
Plaintiff-Appellant presents five assignments of error, which
state:
FIRST ASSIGNMENT OF ERROR
{¶ 34} “THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE
REVIEW COMMISSION DENYING BENEFITS TO CLAIMANTS, BECAUSE THEY WERE
TOTALLY UNEMPLOYED UNDER REVISED CODE SECTION 4141.01(M).”
SECOND ASSIGNMENT OF ERROR
10
{¶ 35} “THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE
REVIEW COMMISSION DENYING BENEFITS TO CLAIMANTS, BECAUSE THE ONETIME
SPECIAL PAYMENT WAS NOT HOLIDAY PAY UNDER SECTION
4141.31(A)(5) AND COULD NOT BE ALLOCATED TO THE WEEK ENDING JULY 4,
1998.”
THIRD ASSIGNMENT OF ERROR
{¶ 36} “THE TRIAL COURT ERRED AFFIRMING THE DECISION OF THE
REVIEW COMMISSION DENYING BENEFITS TO CLAIMANTS, WHERE THE SPECIAL
PAYMENT WAS A FORM OF BONUS, THAT COULD NOT BE USED TO REDUCE
BENEFITS UNDER SECTION 4141.31(A)(5).”
FOURTH ASSIGNMENT OF ERROR
{¶ 37} “THE TRIAL COURT ERRED IN AFFIRMING THE DECISION OF THE
REVIEW COMMISSION DENYING BENEFITS TO CLAIMANTS, BECAUSE THE
SPECIAL PAYMENT WAS NOT REMUNERATION UNDER REVISED CODE SECTION
4141.01(H)”
FIFTH ASSIGNMENT OF ERROR
{¶ 38} “THE TRIAL COURT DID NOT LIBERALLY CONSTRUE UNDER R.C.
4141.46 THE APPELLANTS’ CLAIMS FOR UNEMPLOYMENT BENEFITS.”
{¶ 39} Because the contentions which these assignments involve
present intertwined issues of fact and law on the record before us,
they will be considered together.
{¶ 40} We begin our review of these issues with two
observations. First, Ohio’s system of unemployment compensation is
a statutory scheme, R.C. Chapter 4141, and as such a claimant’s
eligibility for benefits is governed by statute. Second, there is
no dispute concerning the existence of the facts on which the
Commission and the common pleas court based their decisions,
because the parties stipulated to them. The only issue is whether
either tribunal erred when it applied governing statutory law to
the facts concerned.
{¶ 41} R.C. 4141.282(A) provides: “Any interested party, within
thirty days after written notice of the final decision of the
unemployment compensation review commission was sent to all
interested parties, may appeal the decision of the commission to
the court of common pleas.” The standard of judicial review
applicable to an R.C. 4141.282(A) appeal was set out by the Supreme
Court in Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of
Employment Services (1995), 73 Ohio St.3d 694:
{¶ 42} “In Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio
St.3d 15, 17-18, 19 OBR 12, 15, 482 N.E.2d 587, 590, this court
held that reviewing courts may reverse ‘just cause’ determinations
‘if they are unlawful, unreasonable, or against the manifest weight
of the evidence.’ This court noted that while appellate courts
are not permitted to make factual findings or to determine the
credibility of witnesses, they do have the duty to determine
whether the board's decision is supported by the evidence in the
record. Id. at 18, 19 OBR at 15, 482 N.E.2d at 590. This duty is
shared by all reviewing courts, from the first level of review in
the common pleas court, through the final appeal in this court.”
Id at p. 696.
{¶ 43} R.C. 4141.29 states: “Each eligible individual shall
receive benefits as compensation for loss of remuneration due to
involuntary total or partial unemployment in the amounts and
subject to the conditions stipulated in this chapter.” “An
individual is ‘totally unemployed’ in any week during which the
individual performs no services and with respect to which no
remuneration is payable to the individual.” R.C. 4141.01(M).
“‘Remuneration’ means all compensation for personal services,
including commissions and bonuses and the cash value of all
compensation in any medium other than cash . . .” R.C.
4141.01(H)(1). These provisions “shall be liberally construed” in
favor of the applicant for benefits. R.C. 4141.46; Vspremi v.
Giles (1980), 68 Ohio App.2d 91.
{¶ 44} It is undisputed that the claimants performed no actual
work for GM for the One Time Special Payment each received.
However, as “personal services” appears in the definition of
remuneration in R.C. 4141.01(H)(1), it is not limited to engaging
in some productive activity. United Steelworkers of America AFLCIO
v. Doyle (1958), 168 Ohio St. 324. When a laid-off employee
retains his status as an available employee, retains his seniority,
pension rights and any right to severance pay, and registers and
reports for state compensation, any compensation he is paid by his
employer is for his services. Id. Thus, personal service “means
not only work actually done but the entire employer-employee
relationship for which compensation is paid to the employee by the
employer.” Id., at p. 327, quoting Social Security Board v.
Nierotko (1946), 327 U.S. 358, 66 S.Ct. 637, 641, 90 L.Ed. 718.
{¶ 45} There is no dispute that claimants retained many if not
all of the features of their employment relationship with GM while
they were laid off from work. Therefore, the One Time Special
Payment the claimants received from GM was compensation for
personal services under the rule of Doyle. Per R.C. 4141.01(M),
for claimants to have been “totally unemployed” and entitled to
benefits as a result, the payment cannot have constituted a form of
“remuneration,” as remuneration is defined by R.C. 4141.01(H)(1).
{¶ 46} In finding against the claimants, the Commission relied
on R.C. 4141.31(A)(5), which states: “Benefits otherwise payable
for any week shall be reduced by the amount of remuneration a
claimant receives with respect to such week as . . . [v]acation pay
or allowance payable under the terms of a labor-management contract
or agreement, or other contract of hire, which payments are
allocated to designated weeks.”
{¶ 47} The Commission found, on the weight of the evidence
presented, that the purpose of the One Time Special Payment was to
replace the lost Independence Week Shutdown and Holiday pay, which
was itself allocated to designated weeks. The trial court went
farther, holding that the MOU modified the National Agreement to
permit payments of the Independence Week Shutdown and Holiday pay
for which the National Agreement otherwise provided.
{¶ 48} We do not agree that the MOU amended the National
Agreement so as to modify its terms. The National Agreement is a
written contract, and written contracts may be modified or amended
by express agreement of the parties to the contract, either in
writing or by parol. Hotchner v. Neon Products (1947), 163 F.2d
672. The MOU expresses no intention to modify the National
Agreement, however.
{¶ 49} A modification may also be implied by the subsequent acts
of the parties that demonstrate a meeting of the minds in agreement
to modify its terms on any particular point. Smaldino v. Larsick
(1993), 90 Ohio App.3d 691. The MOU provides that employees “shall
receive a one time special payment in the amount they would have
been entitled to had they not been on strike or layoff.” That
references the requirements of the National Agreement, but it
doesn’t modify them. Instead, it creates a new and separate right,
which is what the Commission in its decision found.
{¶ 50} We agree with the Commission that the issue of
eligibility for benefits in the present case turns on the
application of R.C. 4141.31(A)(5); specifically, whether the One
Time Special Payment was a form of remuneration because it was
“[v]acation pay or allowance . . . which payments are allocated to
designated weeks.” The Commission found that it was, with respect
to the work week beginning June 29, 1998 through July 3, 1998.
Such questions present issues of fact which are matters the
Commission must determine. Stoll v. Owens Brockway Glass
Container, Inc., Lucas App. No. L-02-1049; 2002-Ohio-3822. Our
task is to determine whether the Commission’s decision is
“unlawful, unreasonable, or against the manifest weight of the
evidence.” Tzangas.
{¶ 51} Strictly speaking, the claimants were not on “vacation”
during the work week June 29 through July 3, 1998. They were
instead laid-off from work. The claimants argue that, on that
basis, the One Time Special Payment cannot be remuneration in the
form of vacation pay or allowance for purposes of R.C.
4141.35(A)(5), as both the Commission and the common pleas court
found. Claimants rely on Budd Co. v. Mercer (1984), 14 Ohio App.3d
269.
{¶ 52} In Budd, employees who were laid off for lack of work
were paid accrued vacation pay for the period pursuant to a labormanagement
agreement. Unemployment compensation benefits were
nevertheless allowed. The Sixth District Court of Appeals
affirmed, reasoning that the claimants could not be both totally
unemployed, which the employer had conceded, and on vacation. The
court held that the payments were instead a bonus which is not a
form of payment which R.C. 4141.35(A)(1)-(5) identifies as
“remuneration.”
{¶ 53} We decline to follow and apply the rule of Budd. The
issue presented is whether these claimants are entitled to
unemployment compensation benefits because they were totally
unemployed for the week concerned. “An individual is ‘totally
unemployed’ in any week during which the individual performs no
services with respect to which no remuneration is payable to the
individual.” R.C. 4141.01(M). Under the rule of Doyle these
claimants performed personal services for GM during the work week
of June 29 through July 3, 1998, because during that period their
relationship with GM was maintained in various ways. Further, and
more importantly, per R.C. 4141.04(H)(2) a “bonus” is a form of
remuneration. Therefore, payment of a bonus renders an employee,
even one who is laid-off, ineligible for benefits because he is not
then unemployed. In that event, whether the bonus was allocated to
designated weeks as vacation pay is immaterial.
{¶ 54} The Director of Job and Family Services is authorized by
R.C. 4141.13(C) to “[a]dopt rules with respect to the collection,
maintenance, and disbursement of the unemployment and
administrative funds.” Such rules must be approved by the
Unemployment Compensation Review Commission before they become
effective. R.C. 4141.14(A). Rules thus adopted and approved are
set out at O.A.C. Chapter 4141-9.
{¶ 55} Acting on the authority conferred by R.C. 4141.13(C), the
Director adopted and the Commission has approved rules which have a
bearing on the issue presented. O.A.C 4141-9-04(B) provides, in
pertinent part: “Remuneration may be . . . denominated by terms
such as vacation pay or allowance, separation pay, holiday pay,
paid absence allowance, downtime paid absence allowance, or short
workweek pay.” The sense of the rule is that the terms set out are
typical and illustrative, not all inclusive or limiting. The
Commission could therefore reasonably find that the One Time
Special Payment is likewise remuneration in the form of vacation
pay or allowance, so long as it is “allocated to designated weeks.”
R.C. 4141.31(A)(5).
{¶ 56} Another rule adopted by the Director and approved by the
Commission that offers guidance in deciding the question presented
is O.A.C. 4141-9-05(A), which states, in pertinent part:
“Remuneration in the form of holiday pay will be applied to the
week during which the holiday occurs as specified by state or
national declaration, regardless of when such remuneration is
actually received. If, however, there exists a written labormanagement
agreement to observe a holiday on a date other than the
one specified by state or national declaration, the holiday pay
will be applied to the week during which the date specified in the
agreement occurs.”
{¶ 57} The Independence Week Shutdown pay period identified in
the National Agreement is the period of Monday, June 29 through
Thursday, July 2, 1998. One of the holidays for which payment is
specified by the National Agreement is July 4, 1998. The July 4
holiday was observed on Friday, July 3 in 1998. The MOU provides
that eligible employees “shall receive a one time special payment
in the amount they would have been entitled to receive had they not
been on strike or layoff” during the Independence Week Shutdown and
Holiday. Per O.A.C. 4141-9-05(A), the pay for the Independence Day
holiday necessarily must apply to July 3, 1998, the last day of the
Independence Week Shutdown and Holiday period that year.
{¶ 58} The foregoing provisions support the conclusion of the
Commission and the common pleas court that the One Time Special
Payment was a form of vacation pay. The further question is
whether, as vacation pay, it was allocated to the designated work
week of June 29 through July 3, 1998.
{¶ 59} To “allocate” means “to apportion for a specific purpose
or to particular persons or things.” Webster’s Third International
New Dictionary. Here, the One Time Special Payment was apportioned
by recipient and amount to persons who, but for their inability to
work the required prior and subsequent shifts because of the
layoff, would have been entitled to receive Independence Week
Shutdown and Holiday Pay in 1998 for the week designated.
Therefore, the Commission could reasonably find, as it did, that
the One Time Special Payment was allocated to the week designated.
On the standard of review we are required by Tzangas to apply, we
cannot find that the Commission’s decision was unreasonable,
unlawful, or against the manifest weight of the evidence.
{¶ 60} Plaintiff-Appellant argues that the decision denying the
claimants’ unemployment compensation benefits should be reversed on
other grounds, however.
{¶ 61} First, Plaintiff-Appellant argues that the One Time
Special Payment cannot be allocated to the work week of June 30
through July 3, 1998, because it was not paid until August 13 or
14, 1998. We are urged to adopt and follow the distinction in that
regard on which the court in General Motors Corporation v. Buckner
(2001), 49 S.W.3d. 753, held that unemployment compensation claims
arising under these very same circumstances should be paid.
{¶ 62} Buckner was decided by the Missouri Court of Appeals on
the basis of the statutory law of Missouri governing unemployment
compensation benefits. The relevant statutory provisions state
that an individual is deemed totally unemployed in any week during
which he performs no services “and with respect to which no wages
are payable to such individual.” Section 288.030.1(26)(a), RSMO
(2000). Further, Section 288.036.1 RSMO (2000) provides: “Vacation
pay and holiday pay shall be considered as wages for the week with
respect to which it is payable.”
{¶ 63} The Buckner court reasoned that the One Time Special
Payment was not “payable” for the Independence Week Shutdown and
Holiday in 1998 because the employees acquired no legal right to it
until the MOU was signed subsequent to that week on July 28, 1998,
and that it did not become “payable” until August 9, 1998, after
the employees had returned to work. The court found the one time
special payment could therefore not have been “payable” for the
work week ending July 3, 1998, and for that reason could not be
wages payable for that week that disqualified the employees from
receiving unemployment compensation benefits.
{¶ 64} Unlike Missouri’s, Ohio’s statutory scheme for providing
unemployment compensation benefits takes no account of when
compensation that might constitute remuneration becomes “payable.”
Indeed, O.A.C. 4141-9-05 expressly rejects that consideration with
respect to holiday pay. Further, as the Buckner court also
observed, “[d]ue to the fact that the types of statutes involved in
the various states are not uniform but frequently divergent, we do
not consider authorities from other jurisdictions decisive of this
matter.” Id., at p. 759.
{¶ 65} The fact that, per the terms of the MOU, the One Time
Special Payment was not payable or paid until a later date does not
demonstrate that the agreement allocated it to a period other than
the work week of June 29 through July 3, 1998. The Commission
could, as we have said, reasonably find that the MOU allocated the
payment to that week, and that it therefore constitutes
remuneration for purposes of R.C. 4141.31(A)(5).
{¶ 66} Plaintiff-Appellant’s second contention is the One Time
Special Payment cannot constitute remuneration for purposes of R.C.
4141.31(A)(5) under the rule of Akzo Salt, Inc. v. Ohio Bureau of
Employment Services (1995), 107 Ohio App.3d 567.
{¶ 67} In Akzo Salt, employees were likewise laid off during a
shutdown unilaterally imposed by the employer for economic reasons.
A labor-management agreement authorized payment of an employee’s
unused vacation time in that event. The Sixth District Court of
Appeals held that such payments could not be remuneration, as it is
defined by R.C. 4141.31(A)(5), unless the employee had scheduled
vacation leave during the shut-down period, because absent that it
could not have been “allocated to (those) designated weeks.” Id.
However, if the employee had scheduled his or her vacation during
the period, the payment was allocated and constituted remuneration.
{¶ 68} The circumstance in Akzo Salt is one that R.C.
4141.31(A)(5) was intended to prevent. There, and acting on the
authority conferred by a labor-management agreement, the employer
unilaterally attempted to allocate compensation payable for a
vacation benefit as remuneration for the period in which it was
paid, even though those particular weeks had not been designated
for receipt of the payment by the same labor-management agreement.
Therefore, no allocation was shown. In the present case, the
Commission found that the MOU, which is undisputably a labormanagement
agreement, specifically allocated the payment to a
designated week. We have found that the Board’s decision is not
unlawful, unreasonable, or against the manifest weight of the
evidence. Therefore, we may not reverse. Tzangas.
{¶ 69} As a third contention, Plaintiff-Appellant argues that
the One Time Special Payment should not be viewed as remuneration
because the MOU allows GM to divert monies it is otherwise required
by contract to commit to other employees benefits to the payment it
is required by the MOU to make, until GM is fully reimbursed for
the One Time Special Payments it made.
{¶ 70} R.C. 4141.35(A)(5) takes no account of the source of
vacation pay or allowances, so long as the amount is payable under
the terms of a labor-management agreement and allocated to
designated weeks. Reliance on the fact that the payment is the
product of a labor-management agreement, as it was here,
demonstrates that questions such as the source, amount, or payment
terms are matters committed to the negotiating process, not ones
that affect the application of R.C. 4141.35(A)(5).
{¶ 71} Fourth, Plaintiff-Appellant argues that the Commission
and the common pleas court abused their discretion when they relied
on the flyer quoted in the Commission’s decision to determine the
intent of the parties who executed the MOU. We do not agree.
{¶ 72} The intent of the parties who executed a written
agreement must be determined from its terms, unless those terms are
so ambiguous as to make their intent unclear. The court may then
hear and consider other evidence, parol evidence, in order to make
the determination required.
{¶ 73} The MOU is ambiguous, or at least unclear. In that
event, the Commission and the common pleas court were authorized
to consider other evidence relevant to show what the intent of the
parties was.
{¶ 74} The flyer was prepared by a member local union of the UAW
and circulated to UAW members of that local union. There is no
evidence that those who prepared it had been a part of the
negotiations leading to the MOU. However, as a declaration
concerning the MOU, the flyer is relevant to prove the intent of
the parties who drafted the MOU. It is therefore admissible for
that purpose per Evid.R. 402, unless its admission is other barred.
{¶ 75} The real contention, we believe, is that the flyer is
mere hearsay, and therefore barred by Evid.R. 802. However,
Evid.R. 801(D)(2)(d) provides that a statement is not hearsay when
it is an admission by a party-opponent in the form of “a statement
by his agent or servant concerning a matter within the scope of his
agency or employment made during the existence of the
relationship.”
{¶ 76} There is no dispute that the flyer was issued by a UAW
local to UAW members who were laid off and eligible for the One
Time Special Payment prescribed by the MOU. The requirements of
Evid.R. 801(D)(2)(a) are satisfied. Therefore, the Commission and
the court did not abuse their discretion in considering the
statements in the flyer in order to determine the intent of the
parties who executed the MOU. What weight to give those statements
is a question for the Commission.
{¶ 77} Finally, Plaintiff-Appellant argues that the Commission
ignored the injunction of R.C. 4141.46 that the sections of R.C.
Chapter 4141 “shall be liberally construed.” By that it is meant
that any material doubts must be resolved in favor of coverage.
Vspremi v. Giles. However, that does not affect the deference due
to the trier of fact on judicial review of its decision. Miller v.
Franklin Chemical Industries (August 23, 1984), Scioto App. No.
1460.
{¶ 78} The MOU, which was the product of a negotiated agreement,
was unclear with respect to what type of compensation the One Time
Special Payment actually was. The Commission was charged by law
to resolve lack of clarity, and in doing so found that it was
vacation pay allocated to a designated week. The Commission had
before it the history of the parties’ relations exemplified in the
National Agreement, the specific reference in the MOU to the 1998
Independence Week Shutdown and Holiday Pay benefit the National
Agreement created, the unique circumstances resulting from the layoff
that had deprived the claimants of that benefit, and the
demonstrated intent of the parties to the MOU to replace the lost
benefit with the One Time Special Payment. Based on all of that,
the Commission resolved the questions presented against coverage.
{¶ 79} The Commission is not required to find in favor of
coverage except when ineligibility for coverage is shown to a moral
certainty. The Commission is charged only to resolve any material
doubt in favor of coverage, and in so doing it must rely on the
facts presented and is not bound by any particular nomenclature
which parties adopt, or fail to. On this record, the Commission
could reasonably find that the One Time Special Payment was
remuneration for purposes of R.C. 4141.35(A)(5), notwithstanding
the MOU’s avoidance of any specific definition. Therefore, on the
standard of Tzangas, we may not reverse.
{¶ 80} The assignments of error are overruled. The judgment of
the common pleas court will be affirmed.
. . . . . . . . .
WOLFF, J. and FAIN, J., concur.
Copies mailed to:
Frederick G. Cloppert, Jr., Esq.
William J. Steele, Esq.
Rory P. Callahan, Esq.
Charlett Bundy, Esq.
Laura R. Anderson, Esq.
Hon. Michael T. Hall