COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NOS. 86111 & 86134
RODRIGUEZ et al., :
Appellees, :
v. : and
OHIO DEPARTMENT OF JOB :
AND FAMILY SERVICES ET AL., :
Appellants. :
DATE OF ANNOUNCEMENT
OF DECISION: JANUARY 12, 2006
CHARACTER OF PROCEEDING: Civil appeal from
Common Pleas Court
Case No. 490922
JUDGMENT: REVERSED
DATE OF JOURNALIZATION: _______________________
APPEARANCES:
Cloppert, Latanick, Sauter & Washburn, Rory P. Callahan,
Frederick G. Cloppert Jr., and William J. Steele, for appellees.
Jones Day, Barbara J. Leukart, and Laura R. Anderson, for
appellant General Motors Corp.
Jim Petro, Attorney General, Betsey Nims Friedman and David
E. Lefton, Senior Assistant Attorneys General,and Charlett Bundy,
Assistant Attorney General, for appellant ODJFS.
COLLEEN CONWAY COONEY, Presiding Judge.
{¶ 1} In this consolidated appeal, defendants-appellants,
Director, Ohio Department of Job and Family Services (“ODJFS”) and
General Motors (“GM”), appeal the trial court’s decision reversing
the judgment of the Ohio Unemployment Compensation Review
Commission. Finding merit to the appeal, we reverse the trial
court’s decision.
{¶ 2} The parties stipulated to the procedural history and
facts of this case. In 1998, employees at two GM facilities in
Michigan went on strike. The strike caused a shortage of parts,
and as a result, GM laid off employees, including those involved
in the instant case, who worked at the Parma facility
(“employees”).
{¶ 3} During this time, GM and the employees, as members of
the United Auto Workers (“UAW”) were operating under a National
Collective Bargaining Agreement (“Agreement”). Pursuant to the
Agreement, the period from June 29 to July 2, 1998 was designated
as the “Independence Week Shutdown Period” and July 3 was the
“Independence Day Holiday.” In the Agreement, GM agreed to pay
employees during the shutdown and holiday if certain criteria were
met. One criterion was that the employee had to work the
scheduled day before and the day after the shutdown period.
However, because of the layoff, the employees could not meet this
criterion because they were not working.
{¶ 4} In July 1998, the strike ended and a settlement was
reached. As part of the settlement, GM agreed to pay each UAW
employee, either on strike or laid off as a result thereof, a
special one-time payment (“special payment”) equal to the shutdown
week and holiday pay for which they would have been eligible but
for the strike. This special payment was explained in a
Memorandum of Understanding (“MOU”):
As a result of these negotiations and without prejudice
to the position taken by either party, and without
setting a 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
III.A. 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 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 special payment was received by the employees on
August 13 or 14, 1998, along with their regular pay for the
payroll period ending August 9, 1998.
{¶ 6} The employees applied for unemployment compensation
benefits for the entire period of their layoff. GM contended that
the special payment constituted holiday pay, which was equivalent
to their full pay for the week of July 4. Thus, the employees
would not be entitled to unemployment compensation benefits for
that week. The employees responded that the payment provided by
the MOU between the UAW and GM was a “special payment,” which
should not prevent their receiving full unemployment compensation
for the July 4 week.
{¶ 7} The Ohio Bureau of Employment Services agreed with GM
and issued a determination of benefits denying the claims for
unemployment benefits for the week ending July 4, 1998.1 The Ohio
Unemployment Review Commission (“commission”) reviewed the matter
and issued its decision affirming the bureau “because claimants
received remuneration in the form of holiday pay or allowance in
excess of their weekly benefit amount.”
{¶ 8} The employees appealed this decision to the court of
common pleas. The trial court reversed the commission’s decision
and determined that the special payment did not constitute
remuneration and that the employees were entitled to one week of
unemployment compensation benefits.
{¶ 9} GM and ODJFS appeal, raising two and four assignments of
error respectively, as set forth in the appendix of this opinion.
Because these assigned errors are interrelated, they will be
considered together. Appellants substantively argue that the
trial court erred in reversing the commission’s decision
disallowing the employees’ claims for unemployment compensation.
{¶ 10} R.C. 4141.282 governs the standard of review for
decisions by the commission. Pursuant to subsection (H), 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. Brown v. Ohio Dept. of Job & Family Servs., Defiance
App. Nos. 4-05-07 and 4-05-08, 2005-Ohio-5887, citing Tzangas,
Plakas & Mannos v. Ohio Bur. of Emp. Servs. (1995), 73 Ohio St.3d
694, 697, 653 N.E.2d 1207. “‘[W]hile 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.’” Tzangas, 73 Ohio St.3d at 696, quoting Irvine v. Unemp.
Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 18, 482 N.E.2d 587.
{¶ 11} The trial court reversed the commission’s decision,
finding that it was unlawful, unreasonable, and against the
manifest weight of the evidence. It concluded that the employees
should receive a week of unemployment benefits. In the court’s
very brief analysis, it determined that no personal services were
performed by the employees for the week ending July 4, 1998, and
therefore, pursuant to R.C. 4141.01(M), the employees were totally
unemployed and no remuneration was paid to them.
The Court finds that the one-time special payment was
made as part of the strike settlement within the
Memorandum of Understanding. Until the parties signed
the Memorandum of Understanding, the [employees] had no
rights to the one-time special payment. As such, it was
not a wage or retroactive pay of any kind; the
[employees] performed no personal services for the onetime
special payment.
{¶ 12} Appellants argue that the trial court erred in reversing
the commission’s decision because credible evidence existed to
support the commission’s decision that the special payment made to
the employees was remuneration in the form of holiday pay or
allowance payable with respect to the week ending July 4, 1998.
We agree.
{¶ 13} Other appellate districts have previously decided the
issues before this court based on the same stipulated facts. The
Second, Third, Fifth, Tenth, and Eleventh Appellate Districts
affirmed the commission’s determination that GM’s one-time special
payment was holiday pay remuneration for the Independence Day
holiday, thus precluding employees from receiving unemployment
compensation. Ashwell v. Ohio Dept. of Job & Family Servs.,
Montgomery App. No. 20522, 2005-Ohio-1928; Brown, supra; Futey v.
Ohio Dept. of Job & Family Servs., Richland App. No. 04 CA 14,
2004-Ohio-5400; Nicolas v. Ohio Dept. of Job & Family Servs.,
Franklin App. No. 04AP-771, 2005-Ohio-2635; Burns v. Ohio Dept. of
Job & Family Servs., Trumbull App. Nos. 2004-TR-0071 and 2004-TR-
0072, 2005-Ohio-6290.2 After reviewing the record before us, we
find the reasoning and holdings of these decisions persuasive.
{¶ 14} R.C. Chapter 4141 governs unemployment compensation
benefits. R.C. 4141.29 provides that “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 such week no
remuneration is payable to the individual.” R.C. 4141.01(M).
This section has been interpreted as “‘if a claimant either
performs services, or receives remuneration, he is not
unemployed.’” Nicolas, 2005-Ohio-2635, at ¶ 19, quoting In re
DeLuca (June 19, 1979), Franklin App. No. 79AP-28. See, also, Rini
v. Unemp. Comp. Bd. of Review (1983), 9 Ohio App.3d 214, 215, 459
N.E.2d 602. “Remuneration” is defined 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). Moreover, remuneration may also include payment
terms such as vacation pay or allowance, separation pay, holiday
pay, paid absence allowance, down-time paid absences allowance or
a short work week pay. Ohio Adm.Code (“OAC”) 4141-9-04(B).
{¶ 15} It is undisputed that the employees did not engage in
any productive activity for GM during that week for the special
payment. However, “personal services” are not limited to engaging
in some productive activity. “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.” Ashwell, 2005-Ohio-1928, at ¶ 44,
citing United Steelworkers of Am. AFL-CIO v. Doyle (1958), 168
Ohio St. 324, 154 N.E.2d 623. See, also, Ashwell, supra, at ¶ 44.
Therefore, “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.’” Doyle,
supra, 168 Ohio St.3d at 327, quoting Soc. Sec. Bd. v. Nierotko
(1946), 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718.
{¶ 16} In the instant case, it has been determined that the
employees retained many of the aspects of their employment
relationship with GM during their layoff, including seniority
status and pension rights. Ashwell, supra, at ¶ 45; Brown, supra,
at ¶ 11. Therefore, pursuant to Doyle, the special payment
constituted compensation for personal services. However, in order
for the employees to have been “totally unemployed” and entitled
to unemployment benefits, the special payment cannot be considered
remuneration.
{¶ 17} R.C. 4141.31(A)(5) provides that unemployment “benefits
otherwise payable for any week shall be reduced by the amount of
remuneration or other payment a claimant receives with respect to
such week as* * * vacation 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.” Therefore, if the special payment is deemed remuneration,
then the employee’s unemployment benefits are reduced by the
special payment amount.
{¶ 18} The commission found that the special payment
constituted remuneration in the form of holiday pay or allowance
in excess of the employees’ weekly benefit amount. It determined,
based on the weight of the evidence presented, that the purpose of
the special payment was to replace the lost Independence Week
Shutdown and Holiday Pay, which was allocated to designated weeks.
We find that this decision was neither unlawful nor unreasonable
nor against the manifest weight of the evidence.
{¶ 19} The MOU specifically mentioned that the special payment
was for those employees “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.” The MOU further
acknowledged that the receipt of this special payment might affect
the employees’ unemployment benefits. The employees were paid at
the same rate they would have been paid for the shutdown and
holiday, and tax deductions, wage-progression credits, and the
accrual of vacation benefits were routinely managed for that
particular week. The special payment was classified by GM as
“MISCIWSP” and “MISCHOSP,” which has been interpreted as
“miscellaneous independence week special pay” and “miscellaneous
holiday special pay.” Nicolas, 2005-Ohio-2635, at ¶ 24, quoting
Futey, 2004-Ohio-5400, at ¶ 21.
{¶ 20} Moreover, the commission recognized the “Shop Committee
Informational Flyer” as further support of its decision that the
parties believed and intended that the special payment replaced
the shutdown week and holiday pay. Based on the foregoing, the
commission could have reasonably found that the special payment
was remuneration.
{¶ 21} Nevertheless, the employees argue that the trial court
was correct in its holding because no remuneration was “payable”
to them during the week ending July 4 as they could not meet the
Agreement’s prerequisites for receiving payment. They also
maintain that until the MOU was executed, there was no amount
payable to them, and that GM “allocated” the payment to the week
of August 9. These arguments have been rejected in Ashwell and
Nicolas. As the Ashwell court reasoned, these are “issues of fact
which are matters the Commission must determine. Our task is to
determine whether the Commission’s decision is ‘unlawful,
unreasonable, or against the manifest weight of the evidence.’”
Ashwell, 2005-Ohio-1928, at ¶ 50, quoting Tzangas, 73 Ohio St.3d
at 697.
{¶ 22} Sufficient evidence existed before the commission to
support its findings that, pursuant to the MOU, the parties agreed
to waive certain prerequisites under the Agreement that would
normally prevent the employees from receiving the shutdown and
holiday pay.
{¶ 23} Furthermore, as noted by the Nicolas court, the date on
which a payment is received is not dispositive. Nicolas, 2005-
Ohio-2635, at ¶ 26. Pursuant to R.C. 4141.31(A)(5), benefits
otherwise payable for any week are to be reduced by the amount of
remuneration a claimant receives with respect to “vacation pay or
allowance payable under the terms of a labor-management contract
or agreement * * * which payments are allocated to designated
weeks.” Ohio Adm.Code 4141-9-05(A) provides that “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.”
Moreover, OAC 4141-9-04(B) states that “remuneration may be paid
in cash and 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.”
{¶ 24} In its well-reasoned opinion, the Ashwell court
addressed the employees’ arguments and concluded:
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.
The foregoing provisions support the conclusion of the
Commission [* * *] 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.
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.
Ashwell, 2005-Ohio-1928, at ¶ 57-59. See, also, Nicolas,
2005-Ohio-2635.
{¶ 25} We agree with both the Nicolas court, as well as the
Ashwell court, that the commission could reasonably conclude that
the special payment was allocated to the shutdown and holiday,
thereby constituting remuneration for purposes of R.C.
4141.31(A)(5). Nicolas, supra, at ¶ 28.
{¶ 26} The employees further contend that the special payment
is more like a “‘signing bonus’ paid to strikers and claimants
involuntarily laid off” rather than holiday pay. We find that
this argument lacks merit, as did the courts in Ashwell and
Nicolas. Pursuant to R.C. 4141.01(H)(2) a “bonus” is a form of
remuneration. The payment of a bonus renders an employee, even
one who is laid off, ineligible for benefits because he is not
unemployed. Therefore, the Commission could reasonably find that
the special payment was a bonus. Ashwell, 2005-Ohio-1928, at ¶
53; Nicolas, 2005-Ohio-2635, at ¶ 31.
{¶ 27} Moreover, the employees suggest that we should follow a
Missouri decision – Gen. Motors Corp. v. Buckner (Mo.App.2001), 49
S.W.3d 753. Just as the Ashwell court refused to follow this
case, we too, are not bound to the Buckner holding. Ashwell,
2005-Ohio-1928, at ¶ 64. However, we agree with the following
reasoning set forth in Buckner:
14
We are not compelled, however, to follow decisions from
other jurisdictions. Due 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.
Rather, we interpret our own statutes to determine
whether the special payment was deductible from
unemployment compensation payments. In addition, the
appellate courts * * * reiterated that the
determination of whether wages were paid or payable for
a particular week was a factual determination; and
affirmed their respective boards, because their scope of
review required judicial deference to the boards’
decisions. We, too, defer to our Commission’s decision
regarding the week with respect to which the special
payment was deemed payable.
Id., 49 S.W.3d at 759.
{¶ 28} Therefore, we also defer to the Commission’s decision
and find that its decision was neither unreasonable nor unlawful,
nor against the manifest weight of the evidence. The trial court
erred in reversing the commission’s findings because, from the
record and the evidence, the commission could reasonably find that
the employees received remuneration in the form of holiday pay or
allowance in excess of their weekly unemployment compensation
benefit amount.
{¶ 29} Accordingly, the assignments of error are sustained.
Judgment reversed.
Michael J. Corrigan and Joyce J. George, JJ., concur.
Joyce J. George, J., retired, of the Ninth Appellate
District, sitting by assignment.
APPENDIX
GM’s Assignments of Error:
1. The Common Pleas Court erred by failing to afford
appropriate deference to the decision and findings of the
Ohio Unemployment Compensation Review Commission.
2. The Common Pleas Court erred by concluding that
Claimants were “totally unemployed” during the week at
issue under Ohio Revised Code section 4141.01(M).
ODJFS’s Assignments of Error:
I. The Cuyahoga County Common Pleas Court decision is
contrary to U.S. Supreme and Ohio Supreme Court law that
employees remain in service to their employer during a
temporary layoff thereby rendering them “totally
employed” as described in R.C. 414.01(M) of Ohio’s
Unemployment Act.
II. The Cuyahoga County Common Pleas Court erred in not
deferring to the Review Commission’s factual
determination that when claimants received the one time
special payment, they received remuneration, another
statutory indicator that they were “totally employed.”
III. The Cuyahoga County Common Pleas Court erred in
rejecting the Review Commission’s allocation of the
one time special payment to the week of the July 4, 1998
where the Unemployment Act authorizes such allocation
because the labor agreement was silent as to an
allocation date and the evidence of record demonstrated
that claimants and GM intended that the one time special
payment be allocated to that week.
IV. The Cuyahoga County Common Pleas Court erred in
reversing the Review Commission’s denial of unemployment
benefits to claimants who received remuneration for the
same week they were claiming unemployment benefits as to
the Unemployment Act expressly prohibits double payments.