COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73450 JAMES M. SLAVIK : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION LINCOLN ELECTRIC CO., ET AL. : : DEFENDANTS-APPELLEES : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-336079. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: George Wm. Joseph, Jr., Esq. 12211 Madison Avenue Lakewood, Ohio 44107 For Defendant-appellee Betty D. Montgomery Administrator, Ohio Bureau Attorney General of Employment Services Betsey Nims Friedman Assistant Attorney General 12th Floor, State Office Building 615 West Superior Avenue Cleveland, Ohio 44113-1899 For Lincoln Electric Co.: Glenn R. Jones, Esq. 803 East Washington Street, #200 Medina, Ohio 44256 -2- SWEENEY, JAMES D., J.: Plaintiff-appellant James M. Slavik ( Slavik ) appeals from his denial of unemployment compensation benefits after his discharge for excessive attendance infractions with his employer, defendant-appellee Lincoln Electric Company, was determined to having been made for just cause. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Slavik was employed by Lincoln Electric Company from December 3, 1969 to March 14, 1996 as an engine assembler and tester, and worked on a piece- work basis. When there was no work available for piece-work employees, the practice of the employer was to reassign those employees to other tasks in the factory until such time as piece- work orders resumed. Over time, Slavik had fallen into the habit of coming to work late or leaving work early on days when there was no piece-work available. Slavik presented evidence that other employees also came to work late and/or left work early. The record further reveals that the employer made a number of attempts to correct some actions exhibited by Slavik, namely: 1. August 31, 1994 Slavik given written warning for coming in late and leaving work early without permission from his supervisor; 2. December 15, 1995 Slavik's supervisor leaves a note on Slavik's Kronos sheet1 1The Kronos sheet is the employer's computerized time sheet maintained on each employee. It is the modern equivalent of a punched time card, utilizing a plastic card containing a magnetic information strip which is swiped through the machine when the employee enters or leaves work. -3- indicating the standard starting times at the factory; 3. January 8, 1996 Slavik receives a two- week suspension for violating the company's no smoking policy; 4. January 20, 1996 Slavik given a verbal warning after he left work prior to the end of his shift; 5. February 23, 1996 Slavik's supervisor leaves another note on Slavik's Kronos sheet indicating that when Slavik was scheduled to begin work at 6:30 a.m., the shift would end at 4:30 p.m. From Monday, March 4, 1996 through Friday, March 8, 1996, Slavik was granted vacation time so as to travel to Florida. Slavik was scheduled to return to work on Monday morning, March 11, 1996. On Friday, March 1, 1996, one business day prior to the scheduled start of the vacation period, Slavik failed to report for work and did not notify the factory of that fact. Slavik maintained that he decided to serve the last day of his two-week suspension on that day and there was no detriment to the factory operation because, without notifying his supervisor, he had arranged for a fellow employee (Charles Gabriel) to cover his duties on the line. On March 11, 1996, Slavik did not report for work; instead, his girlfriend, without giving the reason for the absence, notified the production scheduler at the factory that Slavik would not be in that day. Slavik was also absent from work on Tuesday, March 12, 1996 and Wednesday, March 13, 1996. The company indicated that it received a call from Slavik's girlfriend on March 13, 1996, concerning the absenteeism that date, but that there is no record of anyone notifying the factory of Slavik's -4- absenteeism on March 12, 1996. Slavik, who asserted that he missed work for those three days to attend to a friend's2 family crisis and his twenty-year-old daughter's personal financial problems, maintains on appeal that his girlfriend called the factory on the three consecutive days he missed work in that period and that he verbally informed his supervisor that he would miss work on March 1, 1996. Slavik indicated that the supervisor told him in general terms that he could take a day off to complete his suspension period if his work station was covered for work that day. This assertion is not corroborated by the supervisor; in fact, the record contains evidence of company testimony that Slavik simply failed to report for work on March 1, 1996 and offered no reason for doing so, and Slavik testified that he never told his supervisor that he wanted to take that particular day, March 1, 1996, off so as to serve out the last day of his suspension. Also, Slavik testified that the supervisor did not identify any particular day as a day Slavik could take off. See Slavik testimony of February 4, 1997, at 3-6, 38-42. Slavik appeared for work on Thursday, March 14, 1996, at which time he was confronted about having missed work. Following the meeting, Slavik was suspended with a recommendation for discharge and was given an opportunity to submit evidence on his behalf to buttress his claims. The only evidence forthcoming from Slavik was 2Slavik claimed that while in Florida, a friend of his developed a medical problem in the friend's family in Cleveland. In response, Slavik allegedly gave the friend his airline ticket to return to Cleveland, and Slavik allegedly drove the friend's car back to Cleveland. -5- (1) a letter from his daughter detailing a personal problem concerning car finances with a bank and (2) his own letter reasserting what he had previously told the company authorities concerning his reasons for having missed work. Slavik was then given an additional opportunity to augment the record with any evidence on his behalf before the discharge recommendation would be ruled upon. Slavik presented no other evidence (such as, hotel receipts, a statement from his friend he assisted in Florida, airline tickets, etc.). On May 8, 1996, the company notified Slavik that he was discharged as an employee. Slavik was unsuccessful in obtaining unemployment compensation benefits at every stage of the administrative process and in his appeal to the common pleas court. The appeal sub judice presents one assignment of error. I THE HEARING OFFICER'S FINDINGS AND REASONING WERE UNLAWFUL, UNREASONABLE, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A similar just cause discharge was addressed by this appellate court in Lawson v. Unemployment Comp. Bd. of Review (November 11, 1996), Cuyahoga App. No. 70256, unreported, at 6-7, 1996 WL 673988: The issue for our consideration is whether the trial court erred in affirming the decision of the Board of Review. In making this determination we note the decision of the Ohio Supreme Court in Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, where the court held in paragraph one of its syllabus: -6- 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. The court explained that although appellate courts do not act as factfinders, there is a duty to determine whether the evidence in the record supports the board's decision. "This duty is shared by all reviewing courts, from the first level of review in the common pleas court, through the final appeal in [the Supreme Court.]" Id. at 696. With this standard in mind, we consider whether the record supports the board's decision to deny benefits in this case. R.C. 4141.29 governs eligibility for unemployment compensation benefits and provides, in pertinent part: (D) *** no individual may *** 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***. In examining the purpose of the Unemployment Compensation Act, the Ohio Supreme Court in Tzangas, supra, explained at 697-698: The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. When an employee is at fault, he is no longer the victim of fortune's whims, but is instead directly responsible for his own predicament. Fault on the employee's part separates him from the Act's intent and the Act's protection. Thus, -7- fault is essential to the unique chemistry of a just cause termination. In the present case, the record supports the just cause determination of the Board of Review. The company handbook clearly provides that an employee who is unable to report for work must telephone the supervisor (or other person at the factory who would take the call in the event the supervisor is unavailable) as soon as possible. Yet, the record demonstrates that (1) Slavik, admittedly, told no one that he intended to be absent from work on March 1, 1996, and (2) he had an unexcused absence on March 12, 1996. Both of these absences were in direct violation of company policy and the best interests of the company. Appellant also argues that the company did not follow its disciplinary policy by not imposing punishment short of termination. This argument is without merit. The handbook clearly indicates that [U]nreported or unexcused absence can lead to dismissal. In particular, but irrelevant to the facts herein, absence from work for five consecutive days is cause for automatic dismissal. Also, the handbook states that excessive or continued abuse in tardiness or leaving early can lead to disciplinary action including termination of employment. Contrary to the assertions of appellant, the company has the discretion to impose a range of punishment, up to and including termination, for an employee having unexcused absences. Under these facts, termination at Lincoln Electric is not limited to only situations involving five consecutive days of unexcused absences. -8- The assignment is overruled. Judgment affirmed. -9- It is ordered that appellees recover of appellant their 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. TERRENCE O'DONNELL, P.J., and LEO M. SPELLACY, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .