COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67299 : PERRY E. JOHNSON : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : CLEVELAND STATE UNIVERSITY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 27, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 141117 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE CLEVELAND STATE UNIV.: RUDOLPH J. GERACI, ESQ. TERRY JENNRICH, ESQ. MERRILL H. HENKIN, ESQ. Geraci & Laperna National City Bank Bldg. #819 2020 Carnegie Avenue 629 Euclid Avenue Cleveland, Ohio 44115 Cleveland, Ohio 44114 and FOR DEFENDANT-APPELLEE JOHN C. DOWLING, Asst. Atty Gen. O.B.E.S.: Education Section 30 East Broad St., 15th Fl. CHARLETT BUNDY, ESQ. Columbus, Ohio 43215-3428 Assistant Attorney General 12th Fl. State Office Bldg. FOR DEFENDANT-APPELLEE 615 W. Superior Avenue BOARD OF REVIEW: Cleveland, Ohio 44113-1899 MARK MASTERANGELO, ESQ. Assistant Attorney General State Office Bldg, 12th Fl. 615 W. Superior Avenue Cleveland, Ohio 44113-1899 -2- PATRICIA ANN BLACKMON, J.: Perry Johnson, plaintiff-appellant, appeals the trial court's affirmance of the Unemployment Compensation Board of Review's denial of unemployment benefits to him for the benefit week of June 13, 1987. Johnson assigns the following two errors for our review: I. REFEREE JOHNSON, ACTING ON BEHALF OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, ERRED WHEN IT REFUSED THE CLAIMANT'S APPLICATION FOR FURTHER APPEAL OF HER DECISION, AND ERRED IN FINDING THAT THE TIME FROM THE CLAIMANT'S DISCHARGE (NOVEMBER 12, 1986) TO THE DATE OF HIS REINSTATEMENT AT CLEVELAND STATE UNIVERSITY ON SEPTEMBER 28, 1987 WAS A "DISCIPLINARY LAYOFF FOR MISCONDUCT IN CONNECTION WITH WORK" THUS RENDERING HIS [sic] INELIGIBLE FOR UNEMPLOYMENT BENEFITS PURSUANT TO O.R.C. SECTION 4141.29(D)(1)(b). II. THE TRIAL COURT OF JUDGE VILLANUEVA ERRED WHEN IT AFFIRMED THE DECISION OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW ON THE GROUND THAT IT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WHEN IN FACT, IT WAS UNREASONABLE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS FOUND BY JUDGE LEVINE AS AFFIRMED BY JUDGE CORRIGAN AND WAS UNLAWFUL ACCORDING TO O.R.C. SECTION 124.03(A) AND THE DECISIONS RENDERED IN SNELLING V. BD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, 64 OHIO APP.3D 261, AND BLITZER V, MAY DEPT. STORES (1990, CT OF APP, 7TH DIST.) NO. 90-B-15. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. In 1985, Perry Johnson had been employed as a Plant Maintenance Engineer at Cleveland State University for 18 years. Among his duties was the maintenance of the university's swimming pool. On October 28, 1985, Johnson added muriatic acid to the -3- swimming pool's acid tank. Johnson picked up a nearby container of chlorine, then accidentally dropped it. The chlorine spilled onto Johnson, onto the pool's deck, and into the acid tank. As Johnson was running away, he kicked over a container of acid. Johnson then took the acid tank outside to the loading dock. On November 6, 1986, after a disciplinary hearing, Johnson was removed from his job due to insubordination. The Department of Administrative Services found that Johnson had failed to follow prescribed procedure for swimming pool water maintenance. Johnson was also found to have violated emergency safety procedures. Johnson appealed the decision to the State of Ohio Personnel Board of Review. In a March 19, 1987 report, Administrative Law Judge Richard Levine recommended Johnson's removal be modified to a three day suspension. Judge Levine found CSU had not established by a preponderance of the evidence that Johnson was guilty of any wrongdoing when he added chemicals to the swimming pool tanks. CSU had presented evidence that University policy provided that chemicals were only to be added to the pool during third shift and contended that Johnson violated this policy by adding the chemicals during his first shift working hours. Judge Levine found the policy had been routinely ignored by the employees; consequently, Johnson's actions did not constitute insubordination, neglect of duty, or failure of good behavior. Judge Levine also found, although Johnson technically failed to adhere to emergency procedures after the spill, his actions should not subject him to harsh discipline when viewed in light of his physical condition -4- upon exposure to the gas and the unrealistic nature of some of the emergency procedures. On April 22, 1987, Judge Levine's recommen- dation was adopted by the Personnel Board of Review. On July 10, 1987, the Ohio Bureau of Employment Services (OBES) ruled that Johnson was not eligible for unemployment benefits because he had been discharged by CSU for good cause. Johnson's application for unemployment benefits had been filed on February 17, 1987. The first benefit week claimed by Johnson was the week of June 13, 1987. Johnson requested reconsideration of the OBES decision in light of the Board of Review's order that CSU reinstate him. In an August 11, 1986 decision, OBES amended its determination, it ruled that Johnson was discharged under nondisqualifying conditions and allowed his claim for benefits for the week of June 13, 1987. CSU appealed the Board of Review's decision to the common pleas court. In a September 15, 1987 journal entry, the trial court adopted the Board of Review's order and ordered CSU to reinstate Johnson to his former job or an equivalent job at the same pay rate. The court also ordered CSU to give Johnson back pay retroactive to the date of termination (with an allowance for the three day suspension). On August 24, 1987, CSU appealed the OBES finding that Johnson was discharged without just cause and eligible for unemployment benefits for the week of June 13, 1987. The State of Ohio Unemployment Compensation Board of Review conducted hearings on the appeal. The Board found "since claimant has been reinstated -5- back to work, that the time from claimant's discharge, or November 12, 1986, to his reinstatement back to work, or September 28, 1987, will be considered a disciplinary layoff". R.C. 4141.29(D)(1)(b) provides that no individual may serve a waiting period or be paid benefits for any week during the period of a disciplinary layoff for misconduct in connection with work. Consequently, in an October 8, 1987 report, a Board Referee recommended that Johnson's claim for unemployment benefits be disallowed. Additionally, the Referee found that Johnson's claim should be disallowed because his earnings for the week of June 13, 1987 exceeded the amount of his weekly unemployment benefit. On October 20, 1987, Johnson filed an application to institute further appeal before the Board of Review. On December 1, 1987, the application was disallowed and the Referee's recommendation was adopted. On appeal to the common pleas court, the decision was affirmed. This appeal followed. Because Johnson's assigned errors request a review of the Board of Review's findings as well as the decision of the trial court, we must begin our resolution of this appeal by outlining the applicable standard of review. In an appeal from a common pleas court's ruling on review of an administrative decision, an appellate court is limited to determining whether the common pleas court abused its discretion. Lee v. Nick Mayer Lincoln (1991), 74 Ohio App.3d 306,309; Columbus v. Ohio Unemp. Comp. Bd. of Review (1993), 91 Ohio App.3d 548,550. "An abuse of discretion implies a decision without reasonable basis, one which is clearly wrong, not -6- merely an error of judgment". Eastman v. Ohio Bur. of Emp. Serv. (1990), 67 Ohio App.3d 318,321. Johnson argues the Unemployment Compensation Board of Review erred in finding that the time between his discharge and reinstate- ment was a "disciplinary layoff for misconduct in connection with work". He argues the issues regarding his time off were conclu- sively determined by the State Personnel Board of Review. In support of his claim, Johnson cites Snelling v. Bd. of Review, Ohio Bur. of Emp. Serv. (1991), 64 Ohio App.3d 261 which held that the OBES Board of Review should take into account the conclusions reached by the Employment Relations Board when determining whether an employee was terminated for just cause. In this case, Johnson argues the OBES Board of Review erred by not adopting the Employment Relations Board's finding that he was discharged without just cause. However, Snelling held the OBES Board of Review is not conclusively bound by the determinations of the Employment Relations Board. Additionally, in Youghiogheny & Ohio Coal Co. v. Oszust (1986), 23 Ohio St.3d 39,41, the Ohio Supreme Court found that an arbitrator's decision upholding an employee's discharge for just cause does not preclude a finding by OBES that the employee was not discharged for just cause in connection with his work. The Youghiogheny court recognized that the determination of eligibility for unemployment benefits involves unique issues which may differ from those involved in other employer-employee disputes. Id. -7- As discussed above, the OBES Board of Review is not bound by the Employment Relations Board's conclusion. The trial court found the OBES Board of Review's decision was supported by reliable, probative, and substantial evidence. Consequently, a reasonable basis existed for the trial court's finding. Johnson's initial removal from his job was for disciplinary reasons. Because, at the time of the OBES Board of Review hearing, Johnson had been reinstated with back pay, the OBES finding was a reasonable characterization of his time off. Although Johnson argues the decision deprived him of unemployment benefits, it is clear that his receipt of back pay rendered him ineligible for benefits. We find the trial court did not abuse its discretion in upholding the OBES Board of Review's determination. Judgment affirmed. -8- It is ordered that Appellee 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. PATTON, C.J., and DYKE, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .