THE COURT OF APPEALS 
ELEVENTH APPELLATE DISTRICT 
TRUMBULL COUNTY, OHIO 
IN RE CLAIM OF: : O P I N I O N 
WINDETTE L. TIETZ, et al., : 
CASE NO. 2004-T-0132 
Appellants, : 
- vs - 
: 
STATE OF OHIO, DEPARTMENT OF 
JOB AND FAMILY SERVICES, et al., 
Appellees. 
: 
: 
Administrative Appeal from the Court of Common Pleas, Case No. 2004 CV 588. 
Judgment: Affirmed. 
Thomas C. Drabick, Jr., 6805 Oak Creek Drive, Columbus, OH 43229 (For 
Appellants). 
Jim Petro, Attorney General, and Laurel Blum Mazorow, Assistant Attorney General, 
State Office Building, 11th Floor, 615 West Superior Avenue, Cleveland, OH 44113- 
1899 (For Appellee, State of Ohio, Department of Job and Family Services). 
Curtis J. Ambrosy, Ambrosy & Fredericka, 144 North Park Avenue, #200, Warren, OH 
44481 (For Appellee, Southington Local School District Board of Education). 
DONALD R. FORD, P.J. 

{¶1} Appellants, Windette L. Tietz, Susan F. Fanning, Bonnie J. Davis, Mary W. 
Jacoway, Nancy K. Lehmann, Kenneth A. Yoho, Ronald O. Pauli, and Bonnie E. 
Manchester, appeal from the October 7, 2004 judgment entry of the Trumbull County 
Court of Common Pleas, affirming the decision of the State of Ohio Unemployment 
Compensation Review Commission (“Review Commission”), which determined that 
appellants were unemployed as a result of a labor dispute other than a lockout. 

{¶2} Appellants, employees of appellee Southington Local School District 
Board of Education (“Southington”), filed applications for unemployment benefits for the 
weeks ending August 30, September 13, or September 20, 2003. On September 30, 
2003, the director concluded that appellants became unemployed by reason of a 
lockout at appellee Southington, and allowed appellants to receive unemployment 
benefits. 

{¶3} On October 9, 2003, appellee Southington filed timely appeals, which 
were transferred by the director to the Review Commission on November 13, 2003. On 
January 8, 2004, a hearing was held before a hearing officer, who reversed the 
director’s determination and concluded that appellants became unemployed by reason 
of a labor dispute other than a lockout. Appellants’ claims were disallowed. 

{¶4} On March 9, 2004, appellants filed an administrative appeal with the 
Trumbull County Court of Common Pleas pursuant to R.C. 4141.282. Appellants filed a 
joint brief on June 7, 2004. Appellee State of Ohio Department of Job and Family 
Services filed its brief on July 1, 2004, and appellee Southington filed a brief on July 9, 
2004. 

{¶5} The following facts are pertinent to the instant appeal. Appellants were 
employed by appellee Southington as bus drivers, custodians, or secretaries. 
Appellants are members of the Ohio Association of Public School Employees 
(“OAPSE”), Local 673, and the terms and conditions of their employment were 
governed by a collective bargaining agreement between appellee Southington and 
OAPSE. The last contract expired on June 30, 2001. During the 2001-2002, and 2002- 
2003 school years, appellants worked under the terms of the expired contract. 

{¶6} Various negotiating sessions commenced before and after the expiration 
of the contract and the last negotiations occurred on March 26, 2003. The parties were 
unable to agree on a number of provisions, namely one that provided for payment to 
employees who opted not to enroll in appellee Southington’s health care insurance 
program. 

{¶7} Appellee Southington is a member of a consortium of schools in Trumbull 
County that have come together to collectively purchase health insurance coverage for 
their employees in order to negotiate more favorable health insurance premiums. 
Appellee Southington implemented its best and final offer, dated May 1, 2003, to be 
effective July 1, 2003.1 

{¶8} On August 12, 2003, OAPSE filed a notice of its intent to strike with the 
Ohio State Employment Relations Board (“SERB”).2 On August 25, 2003, appellants 
and two additional employees, not parties to the instant appeal, engaged in a work 
stoppage. 

{¶9} Pursuant to its October 7, 2004 judgment entry, the trial court affirmed the 
decision of the Review Commission and “dismissed” appellants’ appeal. The trial court 
indicated that the Review Commission’s decision was not unlawful, unreasonable, or 
against the manifest weight of the evidence. It is from that judgment that appellants 
filed a timely notice of appeal and make the following assignment of error: 

{¶10} “The [t]rial [c]ourt erred as a matter of law when it refused to reinstate 
[a]ppellants’ eligibility to receive unemployment compensation benefits.” 

{¶11} In their sole assignment of error, appellants argue that the trial court erred 
by refusing to reinstate their eligibility to receive unemployment compensation benefits. 
Appellants stress that appellee Southington changed the status quo without justification 
when it implemented its best and final offer, and, thus, their unemployment 
compensation benefits should be reinstated. Appellants posit two issues for review. In 
their first issue, appellants allege that the Review Commission’s decision was unlawful, 
unreasonable, or against the manifest weight of the evidence. In their second issue, 
appellants contend that the Review Commission incorrectly decided that their 
unemployment was the result of a labor dispute other than a lockout. 

{¶12} Because appellants’ first and second issues are interrelated, we will 
address them in a consolidated fashion. 

{¶13} In Barnes v. Ohio Dept. of Jobs & Family Services, 11th Dist. No. 2002-G- 
2426, 2003-Ohio-1883, at ¶19, this court stated that: “[a]n appellate court applies the 
same standard as the common pleas court when reviewing the Unemployment 
Compensation Review Commission’s just cause determination. Tzangas, Plakas & 
Mannos v. Ohio Bur. of Emp. Services (1995), 73 Ohio St.3d 694, 696-697 ***. ‘An 
appellate court may reverse the Unemployment Compensation Board of Review’s “just 
cause” determination only if it is unlawful, unreasonable or against the manifest weight 
of the evidence.’ Id. at paragraph one of the syllabus. See, also, R.C. 4141.282(H) ***.” 

{¶14} Under the foregoing standard, reviewing courts are not permitted to make 
factual findings or determine the credibility of witnesses, which are instead reserved for 
decision by the Review Commission. Irvine v. Unemployment Comp. Bd. of Rev. 
(1985), 19 Ohio St.3d 15, 17. The decision of the Review Commission may not be 
reversed simply because reasonable minds might reach different conclusions from the 
same evidence. Tzangas, supra, at 697, citing Irvine at 18. 

{¶15} R.C. 4141.282(H) provides that: “[t]he court shall hear the appeal on the 
certified record provided by the commission. If the court finds that the decision of the 
commission was unlawful, unreasonable, or against the manifest weight of the 
evidence, it shall reverse, vacate, or modify the decision, or remand the matter to the 
commission. Otherwise, the court shall affirm the decision of the commission.” 

{¶16} R.C. 4141.29(D)(1)(a) states in part that: “*** no individual may serve a 
waiting period or be paid benefits *** [f]or any week with respect to which the director 
finds that *** the individual’s unemployment was due to a labor dispute other than a 
lockout ***.” 

{¶17} There are two alternative tests for determining if a lockout occurs when 
employees refuse to continue working after the implementation of a best and final offer. 

{¶18} The first test was enunciated in Zanesville Rapid Transit, Inc. v. Bailey 
(1958), 168 Ohio St. 351. In Zanesville, the Supreme Court of Ohio established a 
“reasonableness test,” which applies when the parties have ceased negotiations and 
the work stoppage subsequently occurs. “‘To constitute a lockout (***) the conditions of 
further employment announced by the employer must be such that the employees could 
not reasonably be expected to accept them and they must manifest a purpose on the 
part of the employer to coerce his employees into accepting them or some other terms. 
(***) 

{¶19} “*** The real test whether the imposition by the employer of changed 
conditions of employment is a withholding of work so as to constitute a lockout lies in 
the question whether the conditions imposed are such that his employees could not be 
expected to continue work under them and, in reason, they had no other course open to 
them but to leave their employment.’” Id. at 355, quoting Almada v. Admr., 
Unemployment Comp. Act (1951), 137 Conn. 380, 389-391. 

{¶20} The second test was established in Bays v. Shenango Co. (1990), 53 
Ohio St.3d 132. In Bays, the Supreme Court of Ohio adopted a “status-quo” test which 
“requires that actions of both the employer and the union be scrutinized in order to 
ascertain whether the parties sought to maintain the status quo.” Id. at 135. “An 
employer deviates from the status quo if it refuses to allow work to continue for a 
reasonable time under the existing terms and conditions of employment while 
negotiations continue.” (Emphasis sic.) Id. 

{¶21} In the case at bar, the evidence in the record demonstrates that appellants 
became unemployed due to a labor dispute other than a lockout. The Bays “status-quo” 
test is inapplicable because contract negotiations were at an impasse.3 Rather, the 
“reasonableness test” established in Zanesville applies here since the parties ceased 
negotiations. See Johnson v. Admr., Ohio Bur. of Emp. Services (1993), 82 Ohio 
App.3d 293; Aliff v. Ohio Bur. of Emp. Services (Mar. 9, 2001), 1st Dist. No. C-000238, 
2001 Ohio App. LEXIS 994; Aliff v. Dir., Ohio Dept. of Job and Family Services (Sept. 
25, 2001), 10th Dist. No. 01AP-18, 2001 Ohio App. LEXIS 4303. 

{¶22} Again, the record shows that the last negotiation session occurred on 
March 26, 2003, approximately five months prior to the work stoppage. The parties had 
been unable to reach an agreement for two years following the expiration of the expired 
contract. No new proposals were advanced by either side after appellee Southington 
implemented its best and final offer in May 2003. 

{¶23} We agree with the Review Commission that the changes imposed, namely 
the health insurance provisions, were not so unreasonable that appellants had no other 
course of action open to them but to strike. We note that teachers employed by 
appellee Southington, as well as employees at other Trumbull County schools, 
accepted the changes in coverage. The Review Commission had competent, credible 
evidence to determine that there were no ongoing negotiations at the time of the work 
stoppage, and, therefore, the Zanesville “reasonableness test” was applicable. In 
addition, appellee Southington’s rapidly increasing insurance premiums coupled with a 
two and one-half percent decrease in state funding required the implementation of the 
changes here. 

{¶24} Appellants’ reliance on Albaugh v. Unemployment Comp. Rev. Comm. 
(May 11, 2001), 5th Dist. No. 00CA024, 2001 Ohio App. LEXIS 2237, which dealt with 
the issue of whether the employer waited a reasonable time before changing the status 
quo, is misplaced. In Albaugh, the employer and the union began negotiating about one 
month before their collective bargaining agreement expired and continued bargaining 
for approximately five months before the employer imposed its final offer. Also, Albaugh 
involved continuing negotiations after the imposition of the employer’s final offer. The 
court in Albaugh determined that if the employer acted reasonably in offering its best 
and final offer, then the analysis shifts to an examination of whether the employees’ 
response to the offer was reasonable. Id. at 8. 

{¶25} In the case here, however, the parties began negotiating about two and 
one-half months before the expiration of their collective bargaining agreement and 
continued under the expired agreement for an additional two years. In addition, in the 
instant matter, there is no record of any continuing negotiations after the imposition of 
appellee Southington’s best and final offer. Also, appellants’ response to appellee 
Southington’s best and final offer was not reasonable. Only a minority of the bargaining 
members elected to withhold their services as a result of the implementation of the new 
health benefit program. A majority of the bargaining unit that was involved in the work 
stoppage abandoned the strike within a day or two and returned to work. 

{¶26} We agree that the work stoppage did not constitute a lockout and that 
appellants were not entitled to unemployment compensation. 

{¶27} Appellants’ first and second issues are without merit. 

{¶28} For the foregoing reasons, appellants’ sole assignment of error is not welltaken. 
The judgment of the Trumbull County Court of Common Pleas is affirmed. 
WILLIAM M. O’NEILL, J., 
COLLEEN MARY O’TOOLE, J., 
concur.