Adamski v. B.U.C. , 108 Ohio App. 198 ( 1959 )

The simple but exceedingly difficult problem confronting us is whether the two plants of the employer, one in Toledo and the other 60 miles away in the Detroit area, constitute a "factory, establishment or other premises" within the purport and meaning of the phrase as employed in Section 4141.29 (C), Revised Code.

As has been cogently remarked: "The relative recency of the [unemployment compensation] law and the paucity of judicial decisions thereon create historical nuances rather than historical facts, which are of only small import in a historical interpretation of the true purpose of the act." Tennessee Coal,Iron R. Co. v. Martin, 251 Ala. 153, 36 So.2d 547, 548. Another court has said: "Until more cases involving a wide variety of factual situations have been brought to the courts, judicial answers will necessarily lack the usual rigor of legal formulas, and tend to be tentative and groping in their nature. Concrete cases will develop general principles, and precise definition will issue from the wisdom acquired by greater experience." Sturdevant Unemployment Compensation Case, 158 Pa. Super. 548, 45 A.2d 898, 902.

At the outset, it is to be stated that there is a vast difference between the far-flung industrial empire of the Ford Motor Company, having some 23 or more plants throughout the land under more or less autonomous management, sought to be treated as a single establishment, and the circumstances presented by the two Champion plants involved in the instant case. Each of the eight Ford cases allowing compensation¹ are readily distinguishable upon the facts and also because the statutes of such states in the main materially differ from the Ohio act.²

Notwithstanding the Ford cases are distinguishable, some assistance is gleaned from the principles enunciated and the tests applied in reaching their conclusions.

1. In general, the decisions are premised upon the laudable purpose of the several acts to relieve hardships caused by unemployment due to no fault of the employees.

2. The acts are remedial in nature and a liberal construction is to be accorded the granting of compensation. Disqualifying provisions are to be narrowly construed.

3. In the absence of a statutory definition, words and phrases are to be given their ordinary (dictionary) connotation.³

4. Construction of the word, "establishment," at which one is employed is to be determined from the standpoint of employment rather than that of management.

5. There is no important distinction to be drawn from the word, "establishment," in contrast with the phrase, "factory, establishment or other premises."

6. The phrase, "factory, establishment or other premises," or, "establishment at which the person was employed," denotes a definite geographic locality or place of employment.

7. Functional integrality or interdependent syncronization, general unity, physical proximity and other pertinent factors are to be considered as tests in determining whether separate plants, activities or functions constitute an establishment.⁴

Functional integrality alone is insufficient.⁵

8. In states having a nonstrike participation escape clause, in the absence of direct participation, claimants are not chargeable or responsible for the acts of international officers of the union, to which claimants belong, in calling a strike in another state.⁶

9. Administrative determination is not conclusive.⁷

Otherwise an appeal therefrom would be ineffective. But such administrative determination is persuasive. It is of some significance that in most of the Ford cases the administrative decisions were affirmed.

In none of the Ford cases are the tests of functional integrality, proximity and general unity rejected, but functional integrality is definitely rejected as an absolute (Nordling v. Ford Motor Co., supra) or basic (Park v. AppealBoard, supra) test. And it appears to be recognized in such cases that functional integrality, close proximity, general unity and other factors may warrant a conclusion that several plants are a single factory or establishment. To the writer it seems that, as a matter of fact, close proximity is merely an element to be considered incident to applying the test of integrality. If a plant supplying component parts for the manufacture of a product at the main plant is near enough to permit functional integrality and unitary supervision, the former is a part of the main establishment.⁸

The Ohio Unemployment Compensation Board of Review has consistently regarded integrality and proximity as factors in determining eligibility for compensation.⁹

Administrative interpretation of a given law, while not conclusive, is, if long continued, to be reckoned with most seriously and is not to be disregarded and set aside unless judicial construction makes it imperative to do so.Industrial Commission v. Brown, 92 Ohio St. 309, 311,110 N.E. 744; State, ex rel. Automobile Machine Co., v. Brown, Secy.of State, 121 Ohio St. 73, 76, 166 N.E. 903; State, ex rel.Schweinhagen, v. Underhill, Clerk, 141 Ohio St. 128, 132,46 N.E.2d 861; Miami Conservancy Dist. v. Bucher, 87 Ohio App. 390, 95 N.E.2d 226; Tasich v. Board of Liquor Control,95 Ohio App. 377, 119 N.E.2d 659; Wadsworth v. Dambach,99 Ohio App. 269, 280, 133 N.E.2d 158; 82 Corpus Juris Secundum, 761. Of course, administrative practice can not prevail over the clear requirements of a statute prescribing a different procedure, State, ex rel. Morris, v. IndustrialCommission, 134 Ohio St. 380, 17 N.E.2d 741; State, exrel. Brooks Equipment Mfg. Co., v. Evatt, Dir., 137 Ohio St. 125, 28 N.E.2d 360, particularly where the language of the statute is so plain and unequivocal as to admit of but one interpretation. State, ex rel. Kildow, v. Industrial Commission,128 Ohio St. 573, 581, 192 N.E. 873.

It is contended that by reason of the last sentence in Section 4141.01 (A), Revised Code, an out-of-state plant is excluded from an establishment in Ohio. Section 4141.01,inter alia, undertakes to define "employer" as including any individual or type of organization, corporate or otherwise, having in employment three or more individuals at any one time within a calendar year. The last sentence of subparagraph (A) recites:

"All individuals performing services for an employer of any person in this state who maintains two or more establishmentswithin this state are employed by a single employer for thepurpose of such sections [4141.01 to 4141.46, inclusive]." (Emphasis supplied.)

This paragraph undertakes to define the word, "employer," as the term is employed throughout the act and incident thereto refers to a "single employer." Although a number of other terms are defined in the section, the word, "establishment," is not defined.

As the writer construes the quoted sentence, it prevents an employer from avoiding the provisions of the act by employing two persons only in each of two establishments in the state. It also treats as a single employer one who maintains two or more establishments within the state, regardless of whether the operations in the separate establishments are integrated or not and regardless of whether separate types of businesses are conducted therein. As a result of this sentence, an employer having two or more establishments within Ohio has a single account and, for merit rating, his contributions are computed upon the basis of his over-all unemployment experience in the several establishments he operates. See Eiber Realty Co. v.Dunifon, Admr., 84 Ohio App. 532, 82 N.E.2d 565.

Furthermore, the reason why the phrase, "two or more," rather than, "one or more," is employed is because an employer having but one establishment is covered by the first paragraph in subparagraph (A). The quoted sentence makes no reference to an establishment outside the state for the obvious reason that employees of an Ohio employer outside Ohio are presumably covered by the foreign state and are not amenable to the Ohio act.¹⁰

The definition is limited to the meaning of the word, "employer," as used throughout the act and has no application to the word, "establishment," or the phrase, "factory, establishment or other premises," as used in Section 4141.29(C) (2), Revised Code, other than tending to indicate that the term, "establishment," may have been intended to be used in its singular sense.¹¹

In the absence of a statutory or Ohio judicial definition of the phrase, "factory, establishment or other premises," when we are confronted with conflicting contentions as to the meaning which the General Assembly intended, the writer has given serious concern to the applicability of Section 4141.46, Revised Code, requiring that the sections of the act shall be liberally construed. In Baker v. Powhatan Mining Co., supra (146 Ohio St. 600), the court refers to the underlying purpose of the act to lighten the burden of unemployment and that it was designed for the benefit of those whose loss of employment is involuntary, but not those who might be voluntarily unemployed. But the court held that the word, "strike," as then employed in the disqualifying section, instead of "labor dispute," included cessation of work pending negotiation of a new collective bargaining agreement. In that case there was a definite dispute with respect to the meaning of the word, "strike," but the court, without reference to applying the statutory rule of liberal construction, broadened the term to include cessation of work notwithstanding the fact that it could well have concluded that the claimants voluntarily quit work.¹²

Again, in Cornell, Admr., v. Bailey, supra (163 Ohio St. 50), the claimants were not members of the striking union, were not concerned with the dispute and did not participate in the dispute or strike in any way. The court held that those claimants who quit their employment in sympathy with the strikers left their employment and those who were involuntarily deprived of their employment lost their employment by reason of a labor dispute. In referring to the failure of the 98th General Assembly to enact the proposed "escape clause," the court, at page 57, says:

"It seems manifest from the preceding legislative history that the General Assembly positively intended that any person who loses his employment voluntarily or involuntarily, as a result of a labor dispute, shall not be eligible for unemployment benefits as long as that labor dispute continues."¹³

In Cornell, Admr., v. Bailey, supra, the court in reaching its conclusion that the claimants were disqualified from receiving benefits refers to the rejection by the General Assembly of an "escape clause" amendment to the statute. See, also, State, ex rel. Shafer, v. Ohio Turnpike Commission,159 Ohio St. 581, 588, 113 N.E.2d 14, referring to the rejection of an amendment as persuasive in construing the provision of the statute under consideration. It is, therefore, significant that since the 1949 session of the General Assembly it has not seen fit to enact any so-called "escape" clause at subsequent sessions.

In Shannon v. Bureau of Unemployment Compensation, 155 Ohio St. 53, 97 N.E.2d 425, in the absence of a statutory provision relating thereto, the court held that the burden of proof is upon the claimant to establish the right to unemployment compensation and also that the phrase, "available for work," as used in the statute implies some obligation on the part of the claimant to make reasonable effort to obtain work. See dissenting opinion referring to the statute enjoining liberal construction. See, also, United Steelworkers of America v. Doyle,Claims Supr., 168 Ohio St. 324, 154 N.E.2d 623, andZanesville Rapid Transit, Inc., v. Bailey, 168 Ohio St. 351,155 N.E.2d 202, wherein decisions construing statutory provisions adverse to claimants were rendered. Contra,Acierno v. General Fireproofing Co., 166 Ohio St. 538,144 N.E.2d 201.

It thus becomes apparent that the statutory admonition of liberal construction has not prevented the courts of Ohio from applying a disappointing but reasonable construction in the ascertainment of the legislative intent.

Authorities in other jurisdictions more closely analogous upon the facts as well as the law to the situation presented in the instant case are Spielman v. Industrial Commission, supra (236 Wis. 240); Matson Terminals v. California EmploymentCommission (1944), 24 Cal.2d 695, 151 P.2d 202;General Motors Corp. v. Mulquin, supra (134 Conn. 118); andMountain States Tel. Tel. Co. v. Sakrison (1950), 71 Ariz. 219,225 P.2d 707. But in resolving the question, we need not go beyond Ohio unless we disagree with the conclusion reached by the Fifth Appellate District Court of Appeals inMcGee v. Timken Roller Bearing Co.¹⁴

Upon authority of those cases, it is, therefore, concluded that the Common Pleas Court did not err in failing to find that the decision of the Unemployment Compensation Board of Review was unlawful, unreasonable or against the manifest weight of the evidence, and that the judgment should be affirmed.

¹ Nordling v. Ford Motor Co., 231 Minn. 68,42 N.W.2d 576, 28 A. L. R. (2d), 272; Ford Motor Co. v. Division ofEmployment Security, 326 Mass. 757, 96 N.E.2d 859; FordMotor Co. v. New Jersey Dept. of Labor and Industry, 7 N.J. Super. 30,71 A.2d 727, affirmed, 5 N.J. 494,76 A.2d 256; Ford Motor Co. v. Kentucky Unemployment CompensationCommission, 243 S.W.2d 657; Machcinski v. Ford Motor Co.,277 App. Div. 634, 102 N. Y. Supp. (2d), 208; Ford Motor Co. v.Unemployment Compensation Board of Review, 168 Pa. Super. 446,79 A.2d 121; Ford Motor Co. v. Unemployment CompensationCommission, 191 Va. 812, 63 S.E.2d 28; Park v. AppealBoard of Michigan Employment Security Commission, 355 Mich. 103,94 N.W.2d 407.

The single case disallowing compensation is Ford Motor Co. v.Abercrombie, 207 Ga. 464, 62 S.E.2d 209.

The Ohio Unemployment Compensation Board of Review, upon appeals of Abnie and others, disallowed compensation to claimants who lost their employment in the Canton and Hamilton, Ohio, plants as a result of the River Rouge strike in Detroit, on the finding that the Ohio plants were part of the same "factory, establishment or other premises" as Ford assembly lines in Detroit. That decision was not appealed.

² With the exception of New York, the states wherein those cases arose all have so-called escape clauses relating to direct or sympathetic participation in strikes and separate branches of work as separate units of employment. For example, the Michigan act provides "that no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute" unless direct participation be established according to defined circumstances. The Ohio General Assembly has refused to enact such so-called "escape" clauses.Cornell, Admr., v. Bailey, 163 Ohio St. 50,125 N.E.2d 323.

³ In Ohio, in the absence of statutory or judicial definition, the court is privileged to turn to the dictionary.Richards v. State, 110 Ohio St. 311, 315, 143 N.E. 714. But in State, ex rel. Belford, v. Hueston, 44 Ohio St. 1, 7,4 N.E. 471, Spear, J., says: "Where a word is reconcilable with law or established custom in the particular manner in which it is used, a different meaning can not be given to it upon authority of a lexicographer." See, also, Baker v. Powhatan Mining Co.,146 Ohio St. 600, 67 N.E.2d 714; Mutual Bldg. InvestmentCo. v. Efros, 152 Ohio St. 369, 89 N.E.2d 648.

⁴ Nordling v. Ford Motor Co., supra (231 Minn. 68). Cf.Snook v. International Harvester Co. (Ky., 1955),276 S.W.2d 658, disallowing compensation and distinguishing Ford Motor Co. v. Kentucky Unemployment Compensation Commission, supra (243 S.W. [2d], 657).

⁵ In the Ford cases there was a large degree of functional integrality, but there was absent the factor of physical proximity. See, also, Tucker v. American Smelting RefiningCo., 89 Md. 250, 55 A.2d 692, holding that a Utah copper smelter which supplied blister copper to a Baltimore refinery was not one establishment.

⁶ Claimants who refuse to cross picket lines are denied compensation on the ground that they are voluntarily quitting employment rather than on the ground of participation in the strike.

⁷ The acts of several states provide that administrative findings of fact are conclusive and the reviewing courts do not consider contra evidence. In Ohio, the reviewing court is required to determine whether the decision is unreasonable, unlawful or manifestly against the weight of the evidence.Brown-Brockmeyer Co. v. Roach, 148 Ohio St. 511,76 N.E.2d 79.

⁸ In Chrysler Corp. v. Smith (1941), 297 Mich. 438,298 N.W. 87, 135 A. L. R., 900 (now modified if not overruled inPark v. Appeal Board, supra), various coordinated plants synchronized and employed within an area of eleven miles were held to be a single establishment. In Park v. Appeal Board,supra (355 Mich. 103), the Canton, Ohio, forge plant was over 150 miles from the Rouge plant. In General Motors Corp. v.Mulquin (1947), 134 Conn. 118, 55 A.2d 732, disallowing compensation, the two plants were eighteen miles apart. InSpielman v. Industrial Commission (1940), 236 Wis. 240,295 N.W. 1, disallowing compensation, the plants were 40 miles apart. In Snook v. International Harvester Co., supra (276 S.W. [2d], 658), the plants were in the same immediate vicinity. InMcGee v. Timken Roller Bearing Co. (1956, Ohio Court of Appeals, Fifth Appellate District), disallowing compensation, the plants were ninety miles apart.

In a case arising under the Fair Labor Standards Act, the Supreme Court of the United States has recognized the factor of integrated work as a test. Rutherford Food Corp. v. McComb,Admr. (1947), 331 U.S. 722, 726, 91 L. Ed., 1772,67 S. Ct., 1473.

⁹ Alexander Besozzi, Appeals Docket No. 124367, involving disinterested employees of a coal mine, whose entire output was used by Universal Sewer Pipe, who were idled by a strike of clayworkers. Dorothy L. Bradford, Appeals Docket No. 12811, benefits denied to employees of Deisel-Wemmer Corp. in Van Wert, incident to a strike in the Lima unit which prevented transfer of materials for manufacture of cigars at Van Wert. Theodore L. Turcy, Appeals Docket No. 12634, a claimant employed in Ohio and West Virginia as a circulation supervisor of the Pittsburgh Press, who became unemployed due to a strike in the trucking and mailing department of the newspaper in Pittsburgh. Anna L. Adams, Appeals Docket No. 74836, Galion, Ohio, unit supplying material to a Mt. Gilead unit halted by a strike at Galion plant. John H. Bell, Appeal Docket No. 119996, another case involving layoff of an employee in a sewer pipe manufacturing company as a result of a strike at employer's coal mine 13 miles away.Lois McKee v. Timken Co., Appeals Docket No. 38517, reversed upon appeal to Common Pleas Court which in turn was reversed by Court of Appeals, May 14, 1956. Cleve Abnie, Appeals Docket No. 114192, employees of Ford Canton and Hamilton, Ohio, plants laid off as a result of the Ford strike at the main plant in Michigan.

See, also, 10 Ohio State Law Journal, 244 et seq.

¹⁰ See subparagraph (B) (1) (a) and (b) of Section 4141.01, Revised Code, relating to casual or other employment outside Ohio.

¹¹ Cases in other jurisdictions allowing compensation have referred to somewhat similar definitions as indicative of a legislative intention to treat two or more establishments as separate units of employment, but none of these decisions (with the possible exception of Park v. Appeal Board) have construed the provision as ipso facto excluding from the labor dispute disqualification provision a part of an establishment located in another state. Ford v. New Jersey Dept. of Labor Industry,supra; Nordling v. Ford Motor Co., supra; Ford Motor Co. v.Kentucky Unemployment Compensation Commission, supra; Park v.Appeal Board, supra.

¹² See, also, Unemployment Compensation Commission ofAlaska v. Aragon (1946), 329 U.S. 143, 91 L. Ed., 136,67 S. Ct., 245; and American Hawaiian Steamship Co. v. CaliforniaEmployment Comm. (1942), 128 P.2d 627, affirmed, 24 Cal.2d 716,151 P.2d 213.

¹³ In Allen v. Youngstown Municipal Ry. Co. (1954), 72 Ohio Law Abs., 35, bus operators went on strike without setting up picket lines or doing anything to prevent other employees from reporting for work. Maintenance employees who involuntarily lost their employment by reason of the labor dispute were held disqualified, the court stating: "The law makes no difference between individuals who are actively on strike and those who innocently lose their work because of a strike. Both were disqualified."

¹⁴ The overruling of the motion to certify that case of course did not constitute an affirmance of that decision, but it indicates that the Supreme Court did not regard the question therein decided as of sufficient public or great general interest to allow the motion.