COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61059 OHIO TURNPIKE COMMISSION : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION ELLEN O'BRIEN SAUNDERS, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CP-188943 JUDGMENT: REVERSED AND FINAL JUDGMENT FOR APPELLANT. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JAMES C. McGRATH 682 Prospect Street Berea, Ohio 44017 For Defendant-Appellees: LEE FISHER Attorney General BETSEY NIMS FRIEDMAN 12th Floor, State Office Bldg. 615 West Superior Avenue Cleveland, Ohio 44113-1899 JOHN S. SHAFFER 117 West Maple Street Bryan, Ohio 43506 - 2 - KRUPANSKY, J.: Appellant Ohio Turnpike Commission (hereinafter "the OTC") appeals from a decision of the Cuyahoga County Court of Common Pleas. The trial court affirmed the decision of the Ohio Bureau of Unemployment Compensation's Board of Review (hereinafter "the Board") which allowed a claim for unemployment benefits by the OTC's former employee Melanie Surbey. The relevant facts 1 follow: Claimant Melanie Surbey was hired by the OTC on December 3, 1980. She initially worked as a toll collector, but sometime in 1986 was promoted to the position of assistant senior toll collector assigned to Ohio Turnpike Exit 1, a position with some management and supervisory responsibilities. Mrs. Surbey worked with another assistant named Jack Melton. Mrs. Surbey's immediate supervisor was senior toll collector Ron Chamberlain. On December 8, 1988, Mrs. Surbey approached Mr. Chamberlain soon after he came on duty and stated she wanted to tell him of an incident that had occurred earlier that day. Mrs. Surbey told Mr. Chamberlain the following: She and Mr. Melton were working at approximately 1:00 p.m. and at that time Mr. Melton received a telephone call. The call was from Mrs. Surbey's husband, Phillip Surbey, senior toll collector at Ohio Turnpike Exit 2. Mr. Surbey informed Mr. Melton that the OTC's courier was on his way 1 The facts are gleaned from the following: 1) the report of the Board's referee regarding the claim; 2) the transcript of the testimony taken at the two hearings held before the Board's referee; and 3) the exhibits introduced into evidence at the hearing and filed in the trial court. - 3 - to Exit 1. Mr. Surbey requested Mr. Melton to "hide the [floor] buffer" the courier was to retrieve since Mr. Surbey could use it 2 at his laundromat business. Mr. Melton did so. When the courier arrived, he was permitted to walk through the premises by Mr. Melton and Mrs. Surbey. He did not locate the floor buffer; neither Mr. Melton nor Mrs. Surbey informed him where it was located. Therefore, the courier left without it. Mrs. Surbey told Mr. Chamberlain she was afraid "there was going to be a problem with it" and wanted him to handle the situation. As a result of this incident, Mr. Chamberlain did the following: 1) gave Mr. Melton a verbal reprimand; 2) told Mr. Surbey the OTC's property was not leaving its premises; and 3) informed OTC's district supervisor, Mr. Prosser, of the incident. No other action was taken with respect to Mrs. Surbey at that time. On January 3, 1989, Mrs. Surbey was working late in the day with Mr. Melton. A woman came to the office door. The woman explained she was returning home to Wisconsin and had lost her wallet; therefore, she had neither money for the toll nor for gasoline. Mrs. Surbey informed the woman she could write a personal check to pay the toll, so the woman did so. The woman then offered to sell a ring in exchange for $30.00 cash for gasoline since she had encountered difficulty cashing a check at the service plaza; she further stated she would then pay $50.00 2 The OTC had hired an independent company to perform floor cleaning services; hence, the floor buffer was no longer in use and was stored at Exit 1's office building. - 4 - for the ring's return. Mrs. Surbey gave the woman the money and 3 accepted the ring. When Mr. Chamberlain became aware of the second incident, he questioned Mrs. Surbey. Mrs. Surbey stated it was "no big deal." Thereafter, Mr. Chamberlain informed Mr. Prosser of the second incident. Mr. Prosser apparently requested the details regarding both incidents be put in writing so Mr. Chamberlain complied. The evidence suggests that after Mr. Chamberlain submitted his written reports, the reports were then circulated to Mr. Prosser's superiors along with Mrs. Surbey's personnel file, which contained other reports concerning her work performance and attitudes. On February 3, 1989, Mrs. Surbey was called from her employment duties to a meeting in the turnpike exit's office. Also present at this meeting were the following: 1) Mr. Prosser; 2) the OTC's Superintendent of Toll Collection, Mr. Cawley; and 3) the OTC's Director of Operations, Mr. Sharp. Mr. Sharp informed Mrs. Surbey that he had received information concerning the two aforementioned incidents and wanted to give her an opportunity to deny or explain the facts regarding the incidents. Mrs. Surbey, however, did not state to 3 The OTC's "General Rules and Regulations" for employees were entered into evidence at the Board's hearing on Mrs. Surbey's claim; Number 22 states as follows: Toll Collectors shall not purchase property of any kind from a driver or any occupant of a vehicle passing over the Ohio Turnpike. - 5 - Mr. Sharp that the information he received was erroneous. She did, however, become upset and defensive. Mr. Sharp testified at the hearing on Mrs. Surbey's claim for benefits that since Mrs. Surbey did not deny the facts of the incidents and since he had other information about Mrs. Surbey concerning her attitude toward OTC rules, he determined Mrs. Surbey did not belong in a management position. He, therefore, as a disciplinary action, stated to her that she would be demoted from her position as an assistant senior toll collector to that of toll collector, her original position. Mrs. Surbey, further agitated by the disciplinary action, stated that Mr. Sharp's decision was not acceptable and she would have to quit. The next day, Mrs. Surbey telephoned Mr. Prosser and told him she would resign. Subsequently, she submitted two written resignations to the OTC; one was unconditional, the other contained a request for part-time employment. Mrs. Surbey did not receive a reply to the request. Mrs. Surbey thereafter filed a claim for unemployment benefits with the Ohio Bureau of Employment Services (hereinafter "the Bureau"). On her claim form, Mrs. Surbey stated as the reason for leaving employment the following: "falsely accused of misconduct and would not accept demotion." Mrs. Surbey's claim was initially allowed by the Administrator, then upon reconsideration, disallowed. Subsequently, the Board of Review reversed the Administrator - 6 - stating that Mrs. Surbey had quit her employment "with just cause." The basis for the initial allowance of Mrs. Surbey's claim was explained in the findings of fact thusly stated: "she was accused of covering up a piece of missing equipment. She was being demoted with a pay cut. The employer has failed to prove its accusations." (Emphasis added.) The OTC filed a request for reconsideration of the claim, stating that Mrs. Surbey had voluntarily resigned without just cause since the demotion was a proper disciplinary action in response to "conduct directly contrary to the interest of her employer." The Administrator's Reconsideration Decision stated in pertinent part as follows: FACTS: *** Claimant has fialed (sic.) to establish a compelling reason to quit this employment. Claimant has not established the work available was no longer suitable. Therefore, it will be held claimant quit without just cause. DECISION: The determination dated March 23, 1989, is hereby amended. Claimant quit employment with Ohio Turnpike Commission without just cause. Benefits are suspended. Mrs. Surbey filed a timely notice of appeal from the Administrator's decision to the Board. Two hearings were thereafter held on the matter before a referee; both Mrs. Surbey and the OTC presented witnesses and evidence. - 7 - The referee's report, issued January 30, 1990, stated the following: The facts set forth show that the claimant was given a demotion as means of punishment for her involvement in the floor buffer incident and for accepting a ring from a patron in exchange for cash. * * * The Referee finds that the claimant's conduct was against the employer's interest. Certainly, her conduct warranted reprimand if not discharge. However, instead of a discharge or suspension or written reprimand, the claimant was demoted. Thus, the punishment was given in the form of a unilateral change in the claimant's conditions of employment. The claimant reasonably concluded that the unilateral change to a toll collector would effect (sic.) her yearly income by at least $4,000.00 $5,000.00 (sic.) as she was never informed that she could perform the work as toll collector at her current rate of pay. The change in the claimant's conditions of employment was not acceptable to the claimant. She, therefore, resigned. To quit due to a unilateral change in the conditions of employment has been held to be a quit with just cause. Thus, it must be determined that the claimant quit employment with Ohio Turnpike Commission with just cause. No suspension of benefits results from this separation. (Emphasis added.) The referee therefore reversed the Administrator's decision and allowed Mrs. Surbey's claim for benefits. Thereafter, the OTC filed with the Board an application to institute a further appeal; however, the application was disallowed. - 8 - Pursuant to R.C. 4141.28(O), the OTC then appealed the Board's decision to allow Mrs. Surbey's claim to the Cuyahoga County Court of Common Pleas. The Administrator of the Bureau, the Board, and Mrs. Surbey were named as appellees. In its notice of appeal, the OTC stated the Board's decision was contrary to law and against the manifest weight of the evidence. The record of the proceedings before the Board was thereafter duly filed in the trial court, as were the parties' briefs. The trial court issued its judgment entry affirming the decision of the Board on November 21, 1990. The OTC now timely appeals the trial court's decision to this court, citing one assignment of error for review. The OTC's sole assignment of error follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN AFFIRMING THE DECISION OF THE OHIO UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. This assignment of error is well taken. The trial court in the case sub judice acted pursuant to R.C. 4141.28(O), which states in pertinent part as follows: 4141.28 Claim for benefits; procedure. (O) *** The appellant shall file a statement of the assignments of error presented for review ***. If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. - 9 - The OTC raises four interrelated issues in its assignment of error. The first concerns the correct standard of appellate review. The OTC argues the decision of the trial court was an abuse of discretion. This argument is persuasive. In Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159, the court stated the following: The standard of review to be applied by the court of common pleas in appeals from decisions of the board of review is prescribed by statute. R.C. 4141.28(O) ***. * * * The resolution of purely factual questions is for the board of review and its referees as triers of the facts. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 518 [36 O.O. 167]. The role of the court of common pleas, upon an appeal based on factual grounds, is limited to determining whether the board's decision is supported by evidence in the record. Kilgore v. Bd. of Review (1965), 2 Ohio App.2d 69, 71 [31 O.O.2d 108]. * * * Because the statutory standard of review is couched in terms of manifest weight of the evidence, a decision of the board supported by some competent, credible evidence going to all the essential elements of the controversy will not be reversed by a reviewing court as being against the manifest weight of the evidence. See C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279 [8 O.O.3d 261]. * * * The role of an appellate court, in reviewing a determination of a court of common pleas on manifest weight of the evidence on appeal from the board, is - 10 - different. The function of the court of common pleas, in determining whether the board's decision is against the manifest weight of the evidence, necessarily involves the exercise of sound discretion. Accordingly, an order of the court of common pleas based upon a determination of the manifest weight of the evidence, may be reversed only upon a showing that the court abused its discretion. See Rohde v. Farmer (1970), 23 Ohio St.2d 82 [52 O.O.2d 376]. In this context, the meaning of the term "abuse of discretion" connotes more than an error of judgment; it implies a decision without a reasonable basis, one which is clearly wrong. (Emphasis added.) In the case sub judice, the OTC is correct in asserting the trial court's judgment was an abuse of discretion since it affirmed the Board's decision to allow unemployment benefits to be paid to Mrs. Surbey. The trial court's judgment lacked a reasonable basis and was clearly wrong. R.C. 4141.29(D)(2)(a) states the following: (D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions: * * * (2) For the duration of his unemployment if the administrator finds that: (a) He quit his work without just cause or has been discharged for just cause in connection with his work ***. (Emphasis added.) The OTC argues Mrs. Surbey quit her work without just cause. Its argument is persuasive. With regard to R.C. - 11 - 4141.29(D)(2)(a), the Supreme Court of Ohio has stated the following: The claimant has the burden of proving her entitlement to unemployment compensation benefits under this statutory provision, including the existence of just cause for quitting work. Shannon v. Bur. of Unemp. Comp. (1951), 155 Ohio St. 53 [44 O.O. 75]; Canton Malleable Iron Co. v. Green (1944), 75 Ohio App. 526 [31 O.O. 304]; 54 Ohio Jurisprudence 2d (1962), Unemployment Compensation, Section 35. The term "just cause" has not been clearly defined in our case law. We are in agreement with one of our appellate courts that "[t]here is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act." Peyton v. Sun-T.V. (1975), 44 Ohio App.2d 10, 12 [73 O.O.26 8]. The determination of what constitutes just cause must be analyzed in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Essentially, *** "[t]he act was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own." Salzi v. Gibson Greeting Cards (1980), 61 Ohio St.2d 35, 39 [15 O.O.3d 49]. Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15 at 17. (Emphasis added.) In the case sub judice, the referee determined that Mrs. Surbey's actions warranted punishment; however, "the punishment was given in the form of a unilateral change in the claimant's - 12 - conditions of employment . . . effect[ing] (sic.) her yearly income by at least $4,000.00 [to] $5,000.00 . . .." (Emphasis added.) The referee further determined that this "unilateral change" constituted "just cause." The referee's determination, however, was contrary to law and against the manifest weight of the evidence and should therefore have been reversed by the trial court. Irvine v. Unemployment Comp. Bd. of Review, supra. In Ohio, an employee who quits his employ must act in an "ordinarily intelligent" manner to qualify for benefits under 4 R.C. 4141.29(D)(2)(a). Mrs. Surbey's actions both before and after the meeting with her superiors thus do not fall within the prescription of the law. In a case analogous to the one sub judice, the court stated the following: A claimant who walks off the job as the result of a confrontation with her supervisor over her work performance does not act in an ordinarily intelligent manner with respect to retaining her employment, and thus quits work without just cause and is disqualified from receiving unemployment compensation benefits under R.C. 4141.29(D)(2)(a). Tyler v. Ohio Bureau of Emp. Serv. (1988), 48 Ohio App.3d 246, at headnote. 4 Since Mrs. Surbey quit her employment and was not discharged, it is improper to focus inquiry on the OTC's conduct; rather, Mrs. Surbey was required to prove her actions were reasonable under R.C. 4141.29(D)(2)(a). Cf., Pickett v. Unemp. Comp. Bd. of Review (1989), 55 Ohio App.3d 68; Sambunjak v. Bd. of Review (1984), 14 Ohio App.3d 432. - 13 - In Tyler, supra, the claimant, a waitress, became ill at work and requested permission to go home. Her supervisor told her he had no one to replace her, but she could go home early. A half-hour later, claimant became sick again and again asked if she could leave. Her supervisor suggested she rest for a few minutes. Claimant eventually returned to work at the restaurant's "drive-through window." Approximately forty-five minutes before she was scheduled to leave, her supervisor "yelled" at her to "answer the bell as soon as it went off." Claimant became angry and stated she was sick and going home and said, "Call it whatever you want." Her supervisor retorted that she need not bother coming back. The next day, claimant returned her uniform, but did not discuss her job with her supervisor. Claimant's claim for benefits was disallowed by the administrator and the administrator's decision was affirmed by the Board following a hearing before a referee. Claimant then filed an appeal to the court of common pleas; the trial court affirmed the decision of the Board. On appeal to the court of appeals, claimant asserted she was discharged or, in the alternative, quit with just cause. The court of appeals found neither assertion persuasive. Manifestly, the record contains competent, credible evidence supporting the conclusion of the referee that appellant quit her job as the result of the altercation with her boss. There is the testimony of appellant herself that she told Castle that she was sick and going home and that he could call it whatever he wanted. This occurred immediately after - 14 - Castle reprimanded appellant. It was not unreasonable for the referee to infer that appellant quit as a result of the reprimand rather than her illness. * * * Appellant also asserts that she should be entitled to unemployment benefits, even if it is concluded that appellant quit, as she quit for just cause. Appellant argues that because she was not permitted to leave early when she felt ill, appellant had no alternative but to quit. What constitutes "just cause" is not clearly defined by the case law, so each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. * * * Appellant's voluntary termination of employment when she walked off the job as the result of a confrontation with her supervisor over her work performance clearly supports the finding of the referee that appellant did not act in an ordinarily intelligent manner with respect to retaining her employment. Id., at 249, 250. Moreover, "just cause" for quitting employment by implication of the statute and stare decisis requires a lack of fault on the part of the employee. The referee in the case sub judice determined, however, that the demotion, as a unilateral change in the conditions of Mrs. Surbey's employment, constituted "just cause" for Mrs. Surbey to quit. Thus, the referee gave absolutely no consideration to the issue of fault on Mrs. Surbey's part in deciding to award benefits under R.C. - 15 - 4141.29(D)(2)(a). The OTC correctly asserts this was an error of law. Irvine v. Unemployment Comp. Bd. of Review, supra. In the case sub judice, the referee explicitly stated Mrs. Surbey's actions as an employee were improper and even warranted discharge. The referee also explicitly stated that the demotion was a disciplinary action, i.e., Mrs. Surbey was subjected to a disciplinary action for dishonest actions at work and a disregard for her employer's rules. Thus, the referee found Mrs. Surbey was at fault. The fault on Mrs. Surbey's part in the case sub judice negates her claim of "just cause." Since there is fault on the part of the claimant, and so found by the referee, the issue of "just cause" is not reached. The facts of the case sub judice are thus clearly distinguishable from those of Sachs Corp. of U.S.A. v. Rossman (1983), 9 Ohio App.3d 1288, and Vitale v. Admr. (Oct. 30, 1986), Cuyahoga App. No. 51207, unreported, relied upon by appellees herein. In neither of the above-cited cases was the employee at fault for causing the "unilateral change" in conditions of employment. Furthermore, the "unilateral change" doctrine is used in federal courts as a method of maintaining the status quo where there is a collective bargaining agreement in force and no culpable conduct on the employee's part. See, e.g., Airlines Stewards & S. Ass'n. Loc. 550 v. Caribbean Atl. Air., Inc. (D.C.Puerto Rico 1968), 294 F. Supp. 630; United Transport, - 16 - Union, L. 63E v. Penn Central Co. (C.A.6, 1971), 43 F.2d 131. This doctrine is therefore not applicable to the case sub judice and the referee improperly allowed benefits in reliance upon this doctrine. Appellees put much emphasis on the fact that Mrs. Surbey would be subjected to a large pay reduction as a result of demotion. It must be noted, however, that Mrs. Surbey produced no evidence regarding the alleged pay reduction. At the hearing, Mrs. Surbey merely stated the following on direct examination: Q. Was there going to be any difference in pay? A. Yes. Q. Did you ask what the difference in pay would be? A. No I didn't ask. We have booklets there so I could look that up. Q. Did you ask him if this was going to be a demotion in pay? A. No I did not. I just assumed that it would be. Q. And based on that assumption, how much difference did you think there would be? A. $4 to $5,000. (Emphasis added.) Mrs. Surbey had the burden of proof on the issue that she quit for "just cause." Irvine v. Unemployment Comp. Bd. of Review, supra. Her unsupported testimony that she assumed that the demotion would entail a substantial reduction in pay was insufficient to sustain her burden of proof. Cf., Feldman v. - 17 - Loeb (1987), 37 Ohio App.3d 188; Doney v. Board of Review (Dec. 12, 1981), Tuscarawas App. No. CA-1540, unreported. Therefore, the referee's determination on this issue was also unsupported by the evidence. Kilgore v. Bd. of Review (1965), 2 Ohio App.2d 69. It is unlawful and contrary to the legislative intent to permit a payment of benefits under the circumstances of the case sub judice. The affirmance by the Court of Common Pleas of the referee's decision awarding benefits to Mrs. Surbey was thus unlawful, unreasonable and against the manifest weight of the evidence. Therefore, the trial court abused its discretion and erred in affirming the Board's decision. Irvine v. Unemployment Comp. Bd. of Review, supra. Accordingly, the OTC's assignment of error is sustained. Judgment of the trial court is reversed and final judgment is entered for the appellant, the Ohio Turnpike Commission. - 18 - This cause is reversed and final judgment is entered for the appellant, the Ohio Turnpike Commission. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said 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. DYKE, P.J., CONCURS; FRANCIS E. SWEENEY, J., DISSENTS JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .