IN THE COURT OF APPEALS
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
RICHARD J. BROWN, ET AL.
PLAINTIFFS-APPELLANTS CASE NO. 4-05-07
v.
DIRECTOR, OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES, ET AL. O P I N I O N
DEFENDANTS-APPELLEES
RICHARD J. BROWN, ET AL.
PLAINTIFFS-APPELLANTS CASE NO. 4-05-08
v.
DIRECTOR, OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES, ET AL. O P I N I O N
DEFENDANTS-APPELLEES
CHARACTER OF PROCEEDINGS: Administrative Appeals from Common
Pleas Court
JUDGMENTS: Judgments Affirmed
DATE OF JUDGMENT ENTRIES: November 7, 2005
ATTORNEYS:
FREDERICK G. CLOPPERT, JR.
Reg. #0010371
WILLIAM J. STEELE
Reg. #0022823
RORY P. CALLAHAN
Reg. #0072021
Attorneys at Law
225 East Broad Street
Columbus, Ohio 43215
For Appellants
CHARLETT BUNDY
Asst. Attorney General
Reg. #0051842
615 West Superior Avenue, 11th Floor
Cleveland, Ohio 44113-1899
For Appellee, Director, Ohio
Dept. of Job & Family Services
LAURA R. ANDERSON
Attorney at Law
Reg. #0067463
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
For Appellee, General Motors Corp.
SHAW, J.
{¶1} Appellants, several thousand autoworkers who were laid off by
General Motors (“GM”) in June, 1998, appeal the judgment of the Court of
Common Pleas, Defiance County, Ohio. That judgment affirmed the decision of
the Ohio Unemployment Compensation Review Commission, which denied
appellants’ unemployment benefits for the week ending July 4, 1998. Upon
review, we find no error in the trial court’s decision, and therefore affirm the
judgment from which this appeal was taken.
{¶2} The factual background of this case is undisputed between the
parties. Appellants are members of the United Auto Workers (“UAW”) labor
union, and were employed at GM plants in Defiance County in 1998. In June of
that year, employees at two GM facilities in Flint, Michigan went on strike,
resulting in parts shortages throughout the region. As a result, GM was forced to
shutdown several facilities throughout Ohio and place the employees on layoff
status at those facilities. This mass layoff affected some 14,000 UAW members
throughout Ohio; facilities in six Ohio counties were shutdown and appellants
were laid off at various times from June 5, 1998 through August 3, 1998.
Specifically with regard to this appeal, all appellants were on layoff during the
week ending July 4, 1998.
{¶3} Appellants’ employment relationship with GM was governed by a
National Collective Bargaining Agreement (“national agreement”) entered into
between GM and UAW in November 1996. This agreement was still in effect
during the layoff in 1998. The national agreement gave certain employees time
off during a four-day period in 1998 from Monday, June 29 to Thursday, July 2 as
“Independence Week Shutdown Period,” and Friday, July 3 the company
recognized the Independence Day holiday. Pursuant to the national agreement,
GM agreed to pay employees at their regular rate of pay for time off during the
shutdown period if they met certain conditions. The parties agree that in 1998,
due to the layoffs resulting from the strike in Flint, Michigan, it was impossible for
appellants to meet the necessary requirements to receive shutdown pay, because
they did not work the day before and the day after the Independence Day holiday.
{¶4} The strike ended in late July, 1998 and the plants in Ohio began to
reopen; appellants returned to work beginning in early August. As part of the
strike settlement, GM and UAW entered into a Memorandum of Understanding
(“MOU”) dated July 28, 1998. In the MOU, GM agreed to pay each of the UAW
employees affected by the strike and the resulting layoff the holiday pay they
would have received during the Independence Week Shutdown:
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:
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.
This payment will be made in an expeditious manner and taxed
as a regular wage payment in accordance with Document No. 81
of the GM-UAW National Agreement.
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.
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.
{¶5} This “one time special payment” was paid to appellants on August
13th or 14th with their regular pay. It was handled in the same manner as all
regular holiday payments, including regular tax deductions and deductions for
union dues. Additionally, all employees maintained seniority status and were
credited the Independence Day shutdown week for seniority purposes.
{¶6} Thereafter, appellants applied for unemployment compensation
benefits for the entire layoff period. GM subsequently objected to the payment of
unemployment benefits for the Independence Day shutdown week, arguing that
the one time special payment agreed to in the MOU constituted remuneration
which disqualified them from receiving unemployment benefits for that week.
The Ohio Bureau of Employment Services agreed with GM and denied benefits
for that week. On appeal, the Ohio Unemployment Compensation Review
Commission (“Commission”) affirmed, holding that “the Director properly
disallowed all claims for the week in issue because Appellants received
remuneration in the form of holiday pay or allowance in excess of their weekly
benefit amount.” Appellants then appealed to the Defiance County Court of
Common Pleas pursuant to R.C. 4141.282(A), and the court affirmed the Review
Commission’s decision. Appellants now appeal to this Court asserting four
assignments of error:
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).
The Trial Court erred in affirming the Decision of the Review
Commission denying benefits to claimants because the one-time
special payment was not holiday pay under Section
4141.31(A)(5) and could not be allocated to the week ending
July 4, 1998.
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).
The Trial Court erred in 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).
{¶7} All of appellants’ assignments of error are interrelated and therefore
we will address them together. In their assignments of error, appellants challenge
the Commission’s determination that the “one-time special payment” was
remuneration in the form of vacation pay pursuant to R.C. 4141.31(A)(5).
{¶8} When reviewing a decision by the Commission, courts in Ohio are
governed by R.C. 4141.282(H). That section provides that the Court of Common
Pleas shall reverse the Commission’s decision only if it finds “that the decision of
the commission was unlawful, unreasonable, or against the manifest weight of the
evidence.” Appellate courts are to apply the same standard of review as the trial
court. Tzangas, Plakas & Mannos v. Ohio Bur. Of Emp. Serv. (1995), 73 Ohio
St.3d 694, 697, 653 N.E.2d 1207. Thus, “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 [Commission’s] decision is supported by the
evidence in the record.” Id. at 696.
{¶9} After reviewing the record, we agree with the other appellate courts
in Ohio that have addressed this issue. As previously noted, the UAW strikes in
Michigan affected plants across Ohio, and union workers in six different Ohio
counties have filed unemployment compensation claims. Appeals by these
claimants have reached three other appellate courts, and decisions affirming the
Commission’s ruling have been rendered by the Second, Fifth, and Tenth District
Courts of Appeals. Futey v. Ohio Dept. of Job & Family Srvc., 5th Dist. No. 04
CA 14, 2004-Ohio-5400; Ashwell v. Ohio Dept. of Job & Family Srvc., 2nd Dist.
No. 20522, 2005-Ohio-1928; Nicolas v. Ohio Dept. of Job & Family Srvc., 10th
Dist. No. 04AP-771, 2005-Ohio-2635.1 For the following reasons, we also affirm
the ruling of the Commission denying appellants unemployment benefits for the
week ending July 4, 1998.
{¶10} Ohio’s unemployment compensation scheme is delineated by statute
in Revised Code Chapter 4141. That chapter provides that “each eligible
individual shall receive benefits as compensation for loss of remuneration due to
involuntary total or partial unemployment ***.” R.C. 4141.29. A person is
defined as being “totally unemployed” if there is a 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). Thus, an individual may only
receive benefits due to “total unemployment” if they (1) performed no services
and (2) received no remuneration. Nicolas, supra at ¶19; see also In re DeLuca
(June 19, 1979), 10th Dist. No. 79AP-28, unreported; Rini v. Unemployment
Comp. Bd. of Rev. (1983), 9 Ohio App.3d 214, 215.
{¶11} It is clear that appellants did perform services for GM during the
week in question even though the record indicates that they did not engage in any
productive activity for GM during that week. “Personal services” are not limited
to engaging in productive activity. United Steelworkers of America ALF-CIO v.
Doyle (1958), 168 Ohio St. 324. As the Court found in Ashwell, monies received
while an individual retains an employment relationship are paid for services:
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.”
Ashwell, supra at ¶44 (quoting Doyle, supra at 327). There was sufficient evidence
in the record to demonstrate that appellants maintained their employment
relationship with GM: they retained seniority status and pension rights, the week
in question was credited to their seniority status, and the payment they received for
that week was reported as regular compensation. Thus, we agree with the Second
District that the claimants in these cases received were not “totally unemployed”
as defined in R.C. 4141.01(M).
{¶12} Finally, even if benefits were originally available to appellants for
the week ending July 4, the “one-time special payment” eliminated the availability
of those benefits pursuant to R.C. 4141.31(A)(5). That section provides that
unemployment benefits “shall be reduced by the amount of remuneration a
claimant receives *** as [v]action pay or allowance payable under the terms of a
labor-management contract or agreement ***, which payments are allocated to
designated weeks.” The Commission determined that the one-time special
payment was issued as a substitute for the lost pay appellants would have received
for the Independence Week Shutdown. Therefore, because the payment received
under the MOU was more than appellants’ benefit, they were not entitled to any
benefits for that week.
{¶13} It is clear that appellants received remuneration in the instant case.
The Revised Code defines “remuneration” as “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). As we
previously held, the compensation appellants were paid was for personal services;
this compensation clearly meets the definition of “remuneration” contained in
Section 4141.01(H)(1). The only remaining issues regarding the applicability of
R.C. 4141.31(A)(5) is whether that remuneration (1) was a vacation pay or
allowance, (2) payable under the terms of a labor-management relations
agreement, and (3) allocated to specific weeks.
{¶14} The record supports the Commission’s decision on this issue as well.
First, the MOU clearly qualifies as a “labor-management relations agreement.”
Second, the MOU allocated the payment received to the Independence Week
Shutdown; it expressly indicated that the one-time special payment was to replace
the compensation appellants would have received during the shutdown week
period. Third, we agree with the other Ohio appellate courts that the record
supports the Commission’s conclusion that this payment constituted a replacement
for lost vacation pay: “there was evidence supporting the review commission’s
finding that the parties, through the MOU, agreed to waive certain prerequisites
under the national agreement that stood in the way of granting these workers
Independence Week shutdown and Independence Day holiday pay.” Nicolas,
supra at ¶24; see also Ashwell, supra at ¶57–59. The evidence illustrates that both
UAW and GM recognized the payment as being for the Independence Day
holiday:
UAW newsletters announcing the settlement referred to the
payments as Independence Week holiday pay. GM classified the
thirty-two-hour payments [for Monday, June 28 to Thursday,
July 2] in its own records as “MISCIWSP,” which ***
translated as miscellaneous independence week special pay. The
eight-hour payments [for Friday, July 3] were listed in GM
records as “MISCHOSP,” which *** translated as miscellaneous
holiday special pay. *** [B]oth GM and the UAW viewed the
one-time payment as Independence week pay.
Futey, supra at ¶21.
{¶15} Accordingly, the Commission’s decision was not unlawful,
unreasonable, or against the manifest weight of the evidence. Appellants’
assignments of error are overruled, and the decision of the trial court is affirmed.
Judgment Affirmed.
CUPP, P.J. and ROGERS, J., concur.
/jlr