COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60841 : RICHARD MILYO : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION BOARD OF REVIEW, OHIO BUREAU OF : EMPLOYMENT SERVICES, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 179435 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ALAN BELKIN, ESQ. LEE FISHER, ESQ. Shapiro, Turoff & Belkin Attorney General 1200 Standard Building SHARON D. TASSIE, ESQ. Cleveland, Ohio 44113 Assistant Attorney General 12th Floor, State Office Bldg. 615 West Superior Avenue Cleveland, Ohio 44113 CARL GLUEK, ESQ. JOSEPH S. RUGGIE, JR., ESQ. T. MERRITT BUMPASS, JR., ESQ. Thompson, Hine & Flory 100 National City Bank Cleveland, Ohio 44114 - 2 - HARPER, J.: This is an appeal from the judgment of the Cuyahoga County Court of Common Pleas which affirmed a decision of the Board of Review ("the Board") denying employment compensation benefits to Richard Milyo, appellant. For the reasons that follow, we affirm. On August 21, 1989, a hearing was held before a referee. Appellant appeared in person and was represented by counsel. Appellee was represented by Mr. Thomas Rhodes, who was the senior Human Resources Representative for Argo-Tech Corporation ("Argo"), appellant's employer. The following testimony was presented at the hearing, primarily from Mr. Milyo and official records from appellant's employer. The employer did not produce any direct testimony. Mr. Milyo was employed by TRW as a non-destructive engineer from October 1955 to November 1986. In November 1986, appellant's plant was purchased by Argo through a leveraged buy- out. Appellant was kept in the same position by Argo until February 17, 1989. Mr. Steve Graettinger became appellant's supervisor from June 1, 1987 to June 1988. On December 3, 1987, Mr. Graettinger conducted a performance review of the appellant and concluded that appellant's performance was below minimum standards. A second performance review was conducted on May 26, 1988. A slight improvement was shown, but the overall performance was still rated as being below minimum standards. In June 1988, Elmer Mekker became appellant's immediate supervisor. Mr. Mekker reported to Mr. Graettinger. Appellant - 3 - did not feel comfortable with Mr. Mekker's supervision because Mr. Mekker was not a certified level III examiner in the areas of appellant's expertise. Mr. Mekker was a level II, while appellant was level III. On December 2, 1988, appellant was given a warning letter by Mr. Mekker and Mr. Graettinger concerning his attitude and resistance to direction by his supervisors. On January 6, 1989, Mr. Mekker requested from appellant a milestone chart for changing certain job applications to a simplified format (FPI SOP). Appellant failed to comply with Mr. Mekker's request because he felt it was unsafe. On January 26, 1989, appellant was instructed by Mr. Mekker to review an engineering blueprint (MK-50) and to respond to him in writing by February 1, 1989. Appellant responded to the request on February 7, 1989 by sending his response to IE personnel and not to Mr. Mekker, his supervisor. Mr. Milyo testified that there was no specific instruction that he respond to Mr. Mekker so he sent his response to the engineers who requested the information. Mr. Mekker requested that appellant submit daily task lists indicating the work performed the previous day and the amount of time spent on each project. The intent for requesting the daily task lists was to identify those tests that required more time and the reasons for the delay in their completion. Appellant initially complied with the request. In early February 1989 appellant was asked to indicate the amount of time he spent on - 4 - each task completed the previous day. Appellant failed to submit the daily task lists to Mr. Mekker as requested. On February 17, 1989, appellant was terminated by Argo for insubordination and was subsequently denied unemployment compensation because his separation from Argo was determined to be for just cause. The administrator, upon reconsideration, concluded that appellant was discharged without just cause. The referee reversed, holding that: "Claimant was discharged by Argo-Tech Corporation for his continuing defiance to direction from supervision. Such conduct clearly constitutes insubordination and provides just cause for claimant's discharge. While the employer did not produce any direct testimony at the hearing concerning claimant's insubordination, claimant's own testimony provide sufficient evidence of his insubordinate conduct. As an example, claimant admitted at the hearing that he refused to continue to provide daily task lists as requested by his supervisor, when he realized that the supervisor was using them to identify how long claimant spent on each task performed during the day. This alone constitutes willful insubordination and provides just cause for claimant's discharge. It will be held, therefore, that the claimant was discharged by Argo-Tech Corporation with just cause in connection with work and the disqualification for benefits set forth in Section 4141.29(D) (2) (a), Revised Code of Ohio, should be imposed." The Court of Common Pleas affirmed the denial of unemployment compensation benefits. Mr. Milyo filed the instant appeal, assigning one error. Appellant, in his sole assignment of error, states: "THE COURT BELOW IMPROPERLY APPLIED THE CONCEPT OF 'JUST CAUSE' AS IT RELATES IN UNEMPLOYMENT COMPENSATION PROCEEDINGS. HAD THE PROPER 'JUST CAUSE' STANDARD BEEN APPLIED THE COURT BELOW WOULD HAVE FOUND THAT THE ADMINISTRATIVE DECISION SHOULD HAVE BEEN REVERSED THEREBY AFFORDING APPELLANT UNEMPLOYMENT COMPENSATION BENEFITS." - 5 - Since our review is limited to a determination of whether the Board's decision was "unlawful, unreasonable, or against the manifest weight of the evidence", McMillian v. Bd. of Review (1983), 10 Ohio App. 3d 290, paragraph one of the syllabus, the issue presented for our review is whether the lower court's finding that appellant was discharged for just cause was supported by the evidence. R.C. 4141.29(D)(2)(a) provides in relevant part as follows: "[N]o individual may *** be paid benefits *** if the administrator finds that: *** [h]e quit his work without just cause or has been discharged for just cause in connection with his work ***." Just cause, in the statutory sense, has been defined as "that which, to an ordinary intelligent person, is a justifiable reason for doing or not doing a particular act." Daugherty v. Bur. of Employment Services (1984), 21 Ohio App. 3d 1; Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10, 12; Mers v. Dispatch Printing Co. (1988), 39 Ohio App. 3d 99. There is, therefore, no per se rule on what constitutes just cause. The existence of just cause must be determined on a case by case basis with the recognition that the facts of each case are uniquely distinctive from the other. However, in our review, we will take guidance from past cases that have fully discussed just cause. This court, in Euclid Manor Nursing Home v. Bd. of Review (1985), 28 Ohio App. 3d 17, 18, citing Sellers v. Bd. of Review (1981), 1 Ohio App. 3d 161, in discussing "just cause" stated as follows: "In order to have just cause for discharge, pursuant to R.C. 4141.29, there must be some fault on - 6 - the part of the employee involved, in the absence of an overwhelming contractual provision. Such fault does not require misconduct, but, nonetheless, fault must be a factor in the justification for discharge." (Emphasis added.) Id. at 164. It, therefore, follows that the lower court's judgment will be affirmed if the evidence supports the claim that appellant was terminated through his own fault. Appellant argues that his discharge was unjust and faulted the referee for giving more credence to the hearsay evidence of his employer than his sworn testimony. R.C. 4141.28(J) provides in pertinent part: "*** In the conduct of such hearing or any other hearing on appeal to the board which is provided in this section, the board and the referees shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. The board and the referees shall take any steps in such hearings, consistent with the impartial discharge of their duties, which appear reasonable and necessary to ascertain the facts and determine whether the claimant is entitled to benefits under the law. ***" This has been interpreted by the Ohio Supreme court to mean that relevant evidence should be admitted by the referee even though it would be inadmissible in the court of law. See Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41. Therefore, we see no error in the referee's consideration of the hearsay evidence presented by Argo. We do not share appellant's view that the referee gave credibility to Argo's hearsay evidence even though the issue of credibility is beyond our power of review. Quite to the contrary, the referee's decision was based entirely on appellant's testimony. The referee concluded: "While the employer did not produce any direct testimony at the hearing concerning claimant's insubordination, claimant's own testimony provide - 7 - sufficient evidence of his insubordinate conduct. As an example, claimant admitted at the hearing that he refused to continue to provide daily task lists as requested by his supervisor, when he realized that the supervisor was using them to identify how long claimant spent on each task performed during the day. This alone constitutes willful insubordination and provides just cause for claimant's discharge." Appellant's explanation for refusing to comply with his supervisor's order was his fear that such information would be used against him. We find no evidence that supports such concern, since the record reveals that the time spent on individual projects has been a concern of appellant's employer, and that this concern was well communicated to appellant. It is, therefore, not unreasonable to monitor the time spent on projects in order to afford an employer sufficient information to make necessary adjustments for job improvement and efficient running of the company. While it is regrettable that 30 years of service by appellant ended as it did, we find that the constraints placed on our review by the statute and case law, plus the record before us precludes us from justifying appellant's conduct. Thus, we hold that an employee's wilful refusal to obey a legitimate and reasonable order or directive given by an employer which is not inconsistent with the employee's stated duties and which does not affect the health or safety of the employee or others, constitutes an act of insubordination and could be a justifiable cause for a termination of employment. Accordingly, the decision of the court below is affirmed and appellant's assignment of error is overruled. - 8 - It is ordered that appellee, Board of Review, Ohio Bureau of Employment Services, recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, P.J., and ANN McMANAMON, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .