Ohio Dept. of Job & Family Servs. v. Delphi Automotive Sys., Inc. , 2017 Ohio 809 ( 2017 )

[Cite as Ohio Dept. of Job & Family Servs. v. Delphi Automotive Sys., Inc., 2017-Ohio-809.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ohio Department of Job and :
Family Services,
:
Appellee-Appellant, No. 14AP-971
: (C.P.C. No. 13CV-13451)
v.
: (REGULAR CALENDAR)
Delphi Automotive Systems, LLC,
:
Appellant-Appellee.
:
D E C I S I O N
Rendered on March 7, 2017
On Brief: Michael DeWine, Attorney General, and Eric A.
Baum, for appellant. Argued: Eric A. Baum.
On Brief: Vorys, Sater, Seymour and Pease, LLP,
Jonathan R. Vaughn, and Michael J. Ball, for appellee.
Argued: Michael J. Ball.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Appellant before this Court and appellee before the Franklin County Court
of Common Pleas, the Ohio Department of Job and Family Services ("ODJFS") appeals a
decision of the Franklin County Court of Common Pleas entered on November 5, 2014
which reversed a decision of the Unemployment Compensation Review Commission
("UCRC"). We find the court of common pleas entered a judgment that contained legal
error in impermissibly narrowing the plain meaning of the phrase "at the time of the
transfer." Because the court of common pleas did so, it abused its discretion in
considering whether the UCRC decision was in accordance with law and supported by
reliable, probative, and substantial evidence and we reverse.
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No. 14AP-971
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In an agreement dated July 30, 2009, and signed on August 5, 2009,
General Motors Company and Delphi Corporation, among other entities, entered into a
"MASTER DISPOSITION AGREEMENT" with DIP HOLDCO, LLP1 ("DIP") and other
parties whereby DIP would acquire certain assets of Delphi Corporation. (Apr. 8, 2014
UCRC Admin. Records at 455-607.) This agreement was part of a modified plan for
reorganization of Delphi Corporation approved by the United States Bankruptcy Court for
the Southern District of New York and had an effective date of October 6, 2009. Id. at
609-13, ¶ 3.
{¶ 3} Insofar as this reorganization affected Ohio and the case at hand, a number
of state unemployment compensation forms were completed showing the disposition of
various component businesses of Delphi Corporation, specifically Delphi Automotive
Systems Services LLC, Delphi Automotive Systems Human Resources LLC, and Delphi
Diesel Systems Corporation (collectively "Old Delphi") transferred to a company which,
for simplicity, we shall refer to as "New Delphi."2, 3 Id. at 438-42. Among these forms was
one which marked "yes" to the query, "Did you acquire a portion (less than 100%) of a
trade or business from an employer with which your business has common ownership,
management, or control?" Id. at 390, 442. These forms were completed and signed on a
variety of dates in Fall 2009. See id. at 438-42. On the effective date of the transaction,
October 6, 2009, Delphi published a press release in which it asserted, "Rodney O'Neal
[who became President and CEO of Delphi Corp. in 2007] will remain President and CEO
and the current leadership will continue to manage the company's global operations." Id.
at 396, 406. A biography of Rodney O'Neal produced from New Delphi's investor
relations page relates that O'Neal was Director of the Board since May 2011, "became
1 The cover page of the MASTER DISPOSITION AGREEMENT lists "DIP HOLDCO 3, LLC" but other
documents in the record suggest the proper name of this company was "DIP HOLDCO, LLP" before it was
later changed to "DELPHI AUTOMOTIVE, LLP." (UCRC Admin. Records at 455, 621-22.)
2 Corporate formation documents for this company list its official name as "New Delphi Automotive Systems
1, LLC." (UCRC Admin. Records at 615.) However, New Delphi Automotive Systems 1, LLC changed its
name to Delphi Automotive Systems, LLC effective at 12:01 AM on October 7, 2009. Id. at 617. This entity is
apparently a subsidiary of DELPHI AUTOMOTIVE LLP, a limited liability partnership organized under the
laws of England and Wales and formerly known as DIP HOLDCO, LLP. Id. at 621-22.
3 When we refer to the appellee in this lawsuit or when there is no reason or basis on which to distinguish
between eras of Delphi, we shall simply refer to the company as "Delphi."
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No. 14AP-971
President and Chief Executive Officer of [New Delphi] effective October 6, 2009," and
served as Old Delphi's President and CEO since January 2007. Id. at 406.
{¶ 4} On June 20 and July 6, 2011, based on the common management or control
of Old Delphi and New Delphi, the UCRC issued rate determination decisions that
accorded Old Delphi's higher tax rate (rather than the lower rate for new companies) to
New Delphi for the years 2009-2011. Id. at 10, 12-24. On July 19, 2011, Delphi sought
reconsideration of the rate adjustments for 2009 and 2010. Id. at 5-9. The letter seeking
reconsideration maintained that the forms admitting common ownership, management,
or control were erroneous. Id. at 6. The letter represented that New Delphi was
incorporated in Delaware on August 21, 2009. Id. at 5. It also represented that at the time
of the transfer of assets from Old Delphi to New Delphi, the officers of the new company
were David Miller and Jeff Fortizzi. Id. The directors and corporate officers of Old Delphi,
the letter claimed, departed on October 6, 2009 and "[u]pon new board member
approval, the corporate officers of New Delphi were appointed."4 Id.
{¶ 5} A designee of the director of ODFJS denied the request for reconsideration
in a decision mailed on September 7, 2012 based on the finding of common management
and control. Id. at 11. By letter dated October 4, 2012, Delphi sought an administrative
hearing on the matter. Id. at 30-32. Delphi again indicated that the admission of
common ownership, management, or control was an error but this time asserted that in
the period immediately after the October 6 effective date of the transaction but before the
"new board" approved "the corporate officers of New Delphi," David Miller and Michael
Gatto were in control of New Delphi as its officers. Id. at 5, 31.
{¶ 6} On November 6, 2013, the UCRC held a hearing. Id. at 345-84. At the
hearing, both sides agreed that the rate determination was based on R.C. 4141.24(G)(1)
and that the hearing would, therefore, be limited to that topic. Id. at 350-51. ODJFS
presented no witnesses, relying instead on its exhibits. Id. at 348-49. Delphi presented
one witness, Mark Rozycki, who was (at the time of the hearing) the Director of Tax
4 The letter did not disclose that these "corporate officers of New Delphi" were the same people serving in
the same positions they had held when working for Old Delphi or that they were employed and paid by New
Delphi as executives in the period between the effective transaction date (October 6) and their official
appointment on October 23, 2009. (UCRC Admin. Records at 354-55, 371-72.) (Testimony of Mark Rozycki,
Director of Tax Administration for Delphi Automotive Systems, LLC.)
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Administration for New Delphi and had been employed in that capacity since October 6,
2009. Id. at 352.
{¶ 7} Rozycki testified that Old Delphi did not sell or transfer all of its trade or
business, just certain assets. Id. at 362-64. In addition, not all employees transferred
from Old Delphi to New Delphi; 882 of the original 1,266 persons employed by Old Delphi
were retained by New Delphi. Id. at 364. However, Rozycki acknowledged that the
October 6, 2009 press release stated that the executive control of Old Delphi would
continue to New Delphi. Id. at 371-72, 396-97. In addition, he confirmed that each of the
executive officers of Old Delphi held the same positions in New Delphi after the
transaction was complete. Id. at 354-55. Specifically, he testified that although the
executives of Old Delphi were not formally appointed by the new board until October 23,
2009 (over two weeks after the October 6 effective date), they were paid in the interim
and carried out their duties as corporate officers. Id. at 372-73. These officers acted in
their paid capacities but were claimed to be not "officially" in control. Id. Official sign-off
had to be completed, during the 17-day pre-appointment period, by Miller and Gatto. Id.
at 373. Rozycki was not aware of the details of company ownership in terms of stock
holdings or options, but he testified that he did not believe ownership was common
between Old Delphi (which was publicly traded) and New Delphi (which was owned by
two hedge funds). Id. at 360, 366-67, 369, 373. He also testified that the board members
of Old Delphi and New Delphi were different persons. Id. at 369.
{¶ 8} Following the hearing, in a decision mailed on November 13, 2013, the
UCRC affirmed the rate determination subjecting New Delphi to the higher tax rate
inherited from Old Delphi rather than the lower rate for new companies. (Nov. 13, 2013
UCRC Decision, filed in the Franklin County Court of Common Pleas on December 13,
2013.) In the decision, the UCRC stated findings of fact in relevant part as follows:
On October 6, 2009, assets that were previously held by [Old
Delphi] were transferred to [New Delphi] through a
bankruptcy reorganization. Approximately 67% of the
employees who were previously employed by [Old Delphi]
became employees of [New Delphi]. Some assets were
excluded from the transfer. [New Delphi] did not receive all
or substantially all of the assets that were previously held by
[Old Delphi].
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No. 14AP-971
Immediately upon the transfer of the assets, [New Delphi]
was owned and controlled by Silver Point Capital L.P. and
Elliot Associates, L.P., which were two senior creditors of the
business. However, [New Delphi] was managed by the same
individuals who managed [Old Delphi]. The President,
Treasurer, General Counsel and Secretary, and others in high-
level management positions, remained the same. * * *[5] In a
press release issued on October 6, 2009, Delphi stated,
"Rodney O'Neal will remain President and CEO and the
current leadership will continue to manage the company's
global operations."
(UCRC Decision at 4.)
{¶ 9} The UCRC then reasoned:
[New Delphi] can be deemed a successor in interest [] if a
portion of the business of [Old Delphi] was transferred to
[New Delphi], and [New Delphi] was under substantially
common ownership, management, or control as [Old Delphi].
* * * The Review Commission finds that [New Delphi] was an
employer at the time of the transfer as 67% of the employees
were transferred to [New Delphi]. Further, Section 4141-17-
01(C) of the Ohio Administrative Code defines "successor in
interest" to include any person or employer as defined by
Section 4141.01(A)(1) of the Ohio Revised Code that is or
becomes an employer and that acquires a trade or business
under Rules 4141-17-02 to 4141-17-05 of the Ohio
Administrative Code. Even assuming that [New Delphi] was
not an employer at the time of the transfer, it subsequently
became an employer soon after the transfer. * * *
* * * [U]nder Section 4141.24(G)(1) of the Ohio Revised Code,
the transferee assumes the unemployment experience
attributable to the transferred trade or business if, at the time
of transfer, both "employers" are under substantially common
ownership, management, or control. In this case, [New
Delphi] was, at the time of the transfer, under substantially
5 The UCRC decision also included fact findings the bases for which are unclear:
The Treasurer retained the authority to sign checks, drafts or other orders for the payment
of money and therefore continued to have the authority to obligate the funds of the
business, and the Treasurer also retained the authority to endorse or assign negotiable
instruments, bonds, stocks certificates, and other securities. The same individuals who
served on the Board of Directors prior to the transfer continued to serve on the Board of
Directors at the time of the transfer. Members of the new Board of Directors were not
elected until October 23, 2009, which was seventeen days after the transfer.
(UCRC Decision at 4.)
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No. 14AP-971
the same management as the transferred business.
Individuals in key management positions, such as the
President, Treasurer, and General Counsel and Secretary,
continued to manage [New Delphi]. On October 6, 2009,
Delphi issued a media release which stated that "Rodney
O'Neal will remain President and CEO and the current
leadership will continue to manage the company's global
operations." Therefore, based on the evidence presented in
this case, the Review Commission finds that [New Delphi] was
under substantially common management as [Old Delphi] as
of October 6, 2009, which was the date of the transfer. In
addition, the Review Commission finds that [New Delphi]
acquired a portion of the trade or business of [Old Delphi].
(Decision at 5-6.)
{¶ 10} On December 13, 2013, Delphi appealed the decision to the Franklin County
Court of Common Pleas. Both parties to the administrative appeal submitted briefing,
and, on November 5, 2014, the common pleas court issued a decision reversing the
finding of the UCRC. (Nov. 5, 2014 Common Pleas Decision.) The common pleas court
noted that the UCRC decision "was based upon the Commission's conclusions that (i) Old
Delphi and New Delphi were under substantially common management at the time of the
transfer and (ii) New Delphi was an employer at the time of the transfer of a portion of
Old Delphi's trade and/or business to New Delphi on October 6, 2009." (Com. Pl.
Decision at 1.) The common pleas court concluded that the phrase "at the time of
transfer" is limited to the exact moment of transfer, neither pre-transfer nor post-transfer.
Id. at 10. Having narrowly interpreted the field of inquiry, the common pleas court stated
"there is no evidence in the record that prior to or at the time of the transfer there was any
common, let alone substantial, ownership, management or control of Old and New
Delphi." Id. at 8; see also id. at 4, 10-11. It also concluded, "[t]here is no evidence in the
record that New Delphi was an employer, as defined by R.C. 4141.01(A)(1) and used in
R.C. 4141.24(G), at the time of the transfer." Id. at 11; see also id. at 4.
{¶ 11} ODJFS now appeals.
II. ASSIGNMENT OF ERROR
{¶ 12} ODJFS assigns a single error for our review:
As the Review Commission found, Old Delphi funneled
certain of its assets to a hedge fund, only to reroute them to
New Delphi 17 days later. But because the same management
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No. 14AP-971
team made executive decisions throughout the process, the
trial court improperly made factual findings, and thus abused
its discretion, in determining that New Delphi was not an
"employer" and did not have common ownership,
management, and control of the business at the time of the
transfer.
III. STANDARD OF REVIEW
{¶ 13} R.C. 4141.26 instructs that the court of common pleas, when reviewing a
decision of the UCRC:
[M]ay affirm the determination or order complained of in the
appeal if it finds, upon consideration of the entire record, that
the determination or order is supported by reliable, probative,
and substantial evidence and is in accordance with law. In the
absence of such a finding, it may reverse, vacate, or modify the
determination or order or make such other ruling as is
supported by reliable, probative, and substantial evidence and
is in accordance with law.
R.C. 4141.26(D)(2).
{¶ 14} "Our standard of review is narrower than the trial court's. As to factual
issues, our review is limited to a determination as to whether the trial court abused its
discretion." Miracle Home Health Care, LLC v. Ohio Dept. of Job & Family Servs., 10th
Dist. No. 12AP-318, 2012-Ohio-5669, ¶ 18 (citing numerous cases). "Although an abuse of
discretion is typically defined as an unreasonable, arbitrary, or unconscionable decision,
no court has the authority, within its discretion, to commit an error of law." State v.
Jones, 10th Dist. No. 15AP-596, 2016-Ohio-4766, ¶ 15, citing State v. Moncrief, 10th Dist.
No. 13AP-391, 2013-Ohio-4571, ¶ 7. Thus we review the court of common pleas' decision
for abuse of discretion except as to questions of law, which are reviewed de novo.
IV. DISCUSSION
A. Meaning of "at the Time of the Transfer"
{¶ 15} R.C. 4141.24(G)(1) provides that unemployment experience for rate
determination purposes is transferred from an original company to a successor under the
following circumstances:
If an employer transfers its trade or business, or a portion
thereof, to another employer and, at the time of the transfer,
both employers are under substantially common ownership,
management, or control, then the unemployment experience
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No. 14AP-971
attributable to the transferred trade or business, or portion
thereof, shall be transferred to the employer to whom the
business is so transferred.
{¶ 16} The parties have not cited, nor have we found, any case, statute, or rule in
Ohio that has construed the phrase "at the time of the transfer." If this phrase is clear, as
the common pleas court held, then it must simply be applied, not construed. Columbia
Gas Transm. Corp. v. Levin, 117 Ohio St. 3d 122, 2008-Ohio-511, ¶ 19. "The first rule of
statutory construction is to look at the statute's language to determine its meaning. If the
statute conveys a clear, unequivocal, and definite meaning, interpretation comes to an
end, and the statute must be applied according to its terms." Id. If, however, there is
some ambiguity or room for interpretation in the phrase, then we must read the statute
with the instructions provided by the legislature. See R.C. 1.41 (instructing that sections
"1.41 to 1.59, inclusive, of the Revised Code apply to all statutes * * * and to rules adopted
under them"). As pertinent here, the legislature has instructed readers of statutes to
presume that "[t]he entire statute is intended to be effective," and that "a just and
reasonable result is intended." R.C. 1.47(B) and (C). In either case, however, we must first
consider what the phrase "at the time" means.
{¶ 17} The Oxford English Dictionary contains a definition of the phrase "at the
time" under its entry for "time." "A particular period indicated or characterized in some
way, either explicitly (usu. with of) or by anaphoric reference (as at the time, etc.)."
(Emphasis added.) Oxford English Dictionary (OED online Ed. Sept. 2016) (found within
the definition of "time" at A.I.2.a.). Rather than use this definition (or any published
definition or source), the common pleas court stated that the phrase "at the time of the
transfer" is literally a temporal determination—when the stated time of transfer occurs as
set forth by effective date. The court of common pleas concluded that because there was
no evidence that Old Delphi and New Delphi both employed the same officers at a
singular point in time, that is, at single instant of legal transfer, reversal was required.
{¶ 18} This is not correct. The Supreme Court of Ohio has recognized (albeit in a
different context) that transfers of business assets between corporations can take more
than a mere instant. In re Lord Baltimore Press, Inc., 4 Ohio St. 2d 68, 74 (1965)
(recognizing that "the transfer of employees from the payroll of the predecessor to the
payroll of the successor does not have to occur at an instantaneous point of time"). We
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No. 14AP-971
have upheld imposition of a prior rate to a successor under R.C. 4141.24(G)(1) on the
grounds of common management where executives transferred from an old company to a
new company even though they were never simultaneously employed by both companies
during the transaction. Senco Brands, Inc. v. Ohio Dept. of Job & Family Servs., 10th
Dist. No. 15AP-796, 2016-Ohio-4769. The appropriate understanding of the phrase "at
the time of the transfer" is the "period" of the transfer (by which acts necessary to
complete the transfer), not just an arbitrarily determined singular date that is perhaps set
forth as a legal effective date in company or asset transfer documents. Applying this legal
principle to a common sense and perhaps more easily understandable situation, "the time
of the American Revolution" encompasses all the events of the American Revolution, not
only the moment the last signature dried on the Declaration of Independence.
{¶ 19} The common pleas court's interpretation of the phrase subjects R.C.
4141.24(G)(1) to requiring "common" ownership, management, or control of both
predecessor and successor at the exact legal instant of transfer. Such an interpretation
would only apply where, for example, officers are employed by both predecessor and
successor companies simultaneously. In the case of a merger or of a business asset
transfer, the term "transfer" means to move from one place to another, which
encompasses the process of moving—that is, the transportation itself. Oxford English
Dictionary. Despite the existence of a third party through which the transfer occurred,
the transfer was nonetheless a process. That it was a multi-stage process does not permit
an interpretation that resists implementing R.C. 4141.24(G)(1) with concordant
responsibility of the successor for the unemployment compensation rate of the
predecessor. Companies may not adjust their unemployment tax rates by creating an
empty shell company (which employs no one and is managed, owned, and controlled by a
straw holder) to be an interim recipient of its assets, absent a bona fide basis that supplies
finality to an interim transfer.
{¶ 20} More compelling, assets and employees that are transferred to a shell
company and do not rest there but are subject to further transfer do not lose their
significance for the final successive recipient of the transfer. This is because "transfer,"
according to its definition, is a process, not simply a blip in time. We hold that "transfer"
was improperly interpreted and applied by the trial court. We also hold that the common
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No. 14AP-971
pleas court's interpretation of "at the time of the transfer" fails R.C. 1.47's command that
statutes be presumed effective and reasonable, and is in error as a matter of law. R.C.
1.47(B) and (C).
B. Whether the Conclusion that New Delphi and Old Delphi were Under
Common Management was Supported by Reliable, Probative, and
Substantial Evidence
{¶ 21} The court of common pleas, using its erroneous interpretation of "at the
time of transfer," found "no evidence" that New Delphi and Old Delphi had common
management. (Common Pleas Decision at 8.) However, a great deal of evidence was
presented to the common pleas court that supported a factual finding under the
appropriate interpretation of R.C. 4141.24(G)(1) that New Delphi and Old Delphi had
common management.
{¶ 22} In forms filed with ODJFS in Fall 2009, New Delphi admitted that it shared
common ownership, management, or control with Old Delphi. (UCRC Admin. Records at
390, 442.) On October 6, 2009, Delphi asserted in a press release that, "Rodney O'Neal
[who became President and CEO of Delphi Corp. in 2007] will remain President and CEO
and the current leadership will continue to manage the company's global operations." Id.
at 396, 406. Not until after ODJFS made use of the admission to attribute Old Delphi's
higher tax rates to New Delphi did Delphi assert that the common management
admission was a clerical mistake. Id. at 6.
{¶ 23} And even after asserting a purported mistake, Delphi offered confusing
accounts of whom, in fact, managed and controlled New Delphi at the time of the transfer.
In one letter, it was Miller and Fortizzi who were officers (while Miller and Gatto were
owners); in another, it was Miller and Gatto who were officers. Compare id. at 5 and 31.
Also, in testimony at the November 6, 2013 hearing, Delphi's witness did not dispute the
accuracy of the October 6, 2009 press release that asserted common management. Id. at
372. A biography of Rodney O'Neal produced from New Delphi's investor relations page
less than two weeks prior to the November 6th hearing indicated that O'Neal was Director
of the Board since May 2011, "became President and Chief Executive Officer of New
Delphi effective October 6, 2009," and served as Old Delphi's President and CEO since
January 2007. Id. at 406. Despite these public statements, one letter challenging the rate
determinations asserted that the directors and corporate officers of Old Delphi departed
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No. 14AP-971
on October 6, 2009 and suggested no new officers were appointed until later when
"[u]pon new board member approval, the corporate officers of New Delphi were
appointed." Id. at 5. The letter omitted mention that the "corporate officers of New
Delphi" appointed by "new board member approval," were the same people serving in the
same positions they had held when working for Old Delphi and that they were paid in the
interim during the transfer through the shell company by New Delphi before their official
appointment on October 23, 2009. Id. at 5, 354-55, 371-73.
{¶ 24} In the oral hearing, Delphi's own witness testified that each of the executive
officers of Old Delphi held the same positions in New Delphi after the transaction was
complete. Id. at 354-55. Specifically, he testified that although the executives of Old
Delphi were not formally appointed by the new board until October 23, 2009 (over two
weeks after the October 6 effective date), they were paid in the interim and carried out
their duties as corporate officers:
Q: Okay so Mr. Rozycki according to your understanding
then all of the officers moved over from the old company
but you have no idea what position they were working in.
A: Other than executive uh as stated in Rodney's uh I don't
think a, a position was specified.
Q: Alright and um do you have any reason to believe that this
press release is false?
A: No I believe they may have been acting in those positions
but they weren't actually elected to those positions as of
that date.
Q: Okay so they may have been carrying out the duties of uh
um corporate officers but perhaps were not officially so.
A: That, yes that's my understanding.
Id. at 372; see also id at 373.
{¶ 25} Delphi frequently indicated to the public, investors, and (at least initially)
ODJFS that management was common between Old Delphi and New Delphi, and Delphi
only made assertions to the contrary when it began to appear that the fact of common
management had negative tax consequences. The UCRC was free to conclude from the
evidence which of Delphi's assertions about the state of its management were more
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No. 14AP-971
truthful. Thus the UCRC factfinding that "[New Delphi] was managed by the same
individuals who managed [Old Delphi]," was supported by reliable, probative, and
substantial evidence. (UCRC Decision at 4.) It was only by an error of law in construing
the phrase "at the time of the transfer" that the common pleas court was able to conclude
that there was "no evidence" of common management. (Common Pleas Decision at 4, 8,
10-11.) Thus, the common pleas court abused its discretion.
C. Whether the Conclusion that New Delphi was an Employer was
Supported by Reliable, Probative, and Substantial Evidence
{¶ 26} R.C. 4141.24(G)(1) only applies, by its plain terms, when both transferor and
transferee are "employers." The common pleas court found, in reversing the UCRC
determination, that there was no evidence that New Delphi was an employer at the time of
the transfer. (Common Pleas Decision at 4, 11.) Consistent with "at the time of the
transfer" encompassing a period of transfer, rather than the final moment of the process
of a transfer (as designated by an arbitrary effective date), we disagree with the common
pleas court's conclusion.
{¶ 27} The definition of "employer" is set forth by statute in relevant part as
follows:
"Employer" means * * * any individual or type of organization
including any * * * limited liability company, * * * whether
domestic or foreign, * * * who subsequent to December 31,
1971* * *:
(a) Had in employment at least one individual, or in the case
of a nonprofit organization, subsequent to December 31, 1973,
had not less than four individuals in employment for some
portion of a day in each of twenty different calendar weeks, in
either the current or the preceding calendar year whether or
not the same individual was in employment in each such day;
or
(b) Except for a nonprofit organization, had paid for service in
employment wages of fifteen hundred dollars or more in any
calendar quarter in either the current or preceding calendar
year; or
***
(e) Is not otherwise an employer as defined under division
(A)(1)(a) or (b) of this section; and
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No. 14AP-971
(i) For which, within either the current or preceding calendar
year, service * * * is or was performed with respect to which
such employer is liable for any federal tax against which credit
may be taken for contributions required to be paid into a state
unemployment fund.
R.C. 4141.01(A)(1)(a), (b), and (e)(i).
"Employment" means service performed by an individual for
remuneration under any contract of hire, written or oral,
express or implied, including service performed in interstate
commerce and service performed by an officer of a
corporation, without regard to whether such service is
executive, managerial, or manual in nature, and without
regard to whether such officer is a stockholder or a member of
the board of directors of the corporation.
R.C. 4141.01(B)(1).
{¶ 28} Delphi's own witness, Rozycki, testified during the November 2013 hearing
that he was the Director of Tax Administration for New Delphi and had been employed in
that capacity since October 6, 2009 (the effective date of the transfer). (UCRC Admin.
Records at 352.) Rozycki also testified that Miller and Gatto, both members of New
Delphi, served as officers of New Delphi and were in control at the time of the transfer. Id.
at 373. He also testified that the officers of Old Delphi were employed by New Delphi
immediately following the October 6, 2009 effective date, performed duties as officers
and executives (albeit not having been officially appointed yet), and were paid for their
performance. Id. at 372-73. Again, the Delphi press release from October 6, 2009 plainly
indicated "Rodney O'Neal will remain President and CEO and the current leadership will
continue to manage the company's global operations," and a biography of Rodney O'Neal
produced shortly prior to the hearing confirmed that O'Neal "became President and Chief
Executive Officer of [New Delphi] effective October 6, 2009." Id. at 396, 406.
{¶ 29} While wage and tax data for Delphi was not presented at the hearing, the
burden was on New Delphi to show that it was entitled to an exemption from the
inherited tax experience from Old Delphi. McConnell v. Ohio Bur. of Emp. Servs., 10th
Dist. No. 95APE03-262 (Oct. 5, 1995), citing Loctite Corp. v. Tracy, 71 Ohio St. 3d 401,
402 (1994) ("One claiming an exemption from a taxing statute bears the burden of
proving a right to it."). The evidence that supported New Delphi's tax rate inheritance
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No. 14AP-971
from Old Delphi along with the absence of evidence that would support a waiver leaves
New Delphi in the position of being an employer that inherits the previous employer's tax
rate. New Delphi "[h]ad in employment at least one individual" and employed and paid
wages to a team of executives for more than two weeks during the transfer period in
amounts sufficient for federal employment tax liability. R.C. 4141.01(A)(1)(a), (b), and (e).
New Delphi failed to meet its burden to show exemption on these facts, and, thus, UCRC
factfinding that New Delphi was an employer was supported by reliable, probative, and
substantial evidence.
{¶ 30} Delphi argues that "Ohio Rev. Code § 4141.01(A)(1) defines 'employer' as
any person or organization that, in either the current or the preceding calendar year: (i)
employed at least one individual for some portion of a day in each of twenty different
calendar weeks." (Delphi Brief at 21, fn. 6.) Because there was not evidence of
employment in the duration of 20 different weeks, Delphi argues that the common pleas
court's reversal should be affirmed. There are two problems with this argument.
{¶ 31} The first problem is evidentiary in nature. If New Delphi indeed employed
no one, it had the burden to present some evidence supporting that assertion. McConnell,
citing Loctite Corp. at 402. It did not do so. Delphi's witness only tentatively testified
that he was not aware of having employees in Ohio at the time of the transfer:
Q: Okay was [New Delphi] an employer at the time that it
acquired select assets of old Delphi?
A: I believe it, it was not um however we do not form that
entity and other than Gato[sic] and Miller I have no
id[sic], I, I don't know of anybody else who worked for that
company.
Q: Okay so you're not aware of having any employees in the
state of Ohio.
A: Right.
(Admin. Records at 365.)
{¶ 32} The second problem lies in legal statutory interpretation. The present
version of R.C. 4141.01(A)(1)(a) defines "employer" as an organization that:
Had in employment at least one individual, or in the case of a
nonprofit organization, subsequent to December 31, 1973, had
not less than four individuals in employment for some portion
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No. 14AP-971
of a day in each of twenty different calendar weeks, in either
the current or the preceding calendar year whether or not the
same individual was in employment in each such day.
As drafted, the statute applies the limitation, "had not less than four individuals in
employment for some portion of a day in each of twenty different calendar weeks, in
either the current or the preceding calendar year whether or not the same individual was
in employment in each such day," only to "a nonprofit organization." Id. For-profit
organizations are employers under the statute if they "[h]ad in employment at least one
individual," with no specification of how many weeks they had an employee. Id. This
Court has previously noted that "[t]he definition of 'employer' includes individuals who
'ha[ve] in employment at least one individual.' " Evans v. Dir., Ohio Dept. of Job &
Family Servs., 10th Dist. No. 14AP-743, 2015-Ohio-3842, ¶ 14. Delphi's interpretation
that even the "one individual" employed by a for-profit company must have been
employed "for some portion of a day in each of twenty different calendar weeks," in order
for a company to be counted as an employer is misplaced. (Delphi Brief at 21, fn. 6.)
{¶ 33} We are supported in this view by a review of statutory history. Prior to a
revision effective on January 6, 1974, R.C. 4141.01(A)(1)(a) read as follows:
Had in employment at least one individual for some portion of
a day in each of twenty different calendar weeks, in either the
current or the preceding calendar year whether or not the
same individual was in employment in each such day.
Am.Sub.S.B. No. 52, 135 Ohio Laws, Part I, 201. This former version of the statute, were it
still in use, would support Delphi's interpretation. But the 1974 revision added the
underlined text:
Had in employment at least one individual, or in the case of a
nonprofit organization, subsequent to December 31, 1973, had
not less than four individuals in employment for some portion
of a day in each of twenty different calendar weeks, in either
the current or the preceding calendar year whether or not the
same individual was in employment in each such day.
(Emphasis added.) Id. Because of the addition of the comma after "one individual" and
the failure to include a comma after "individuals in employment," the plain grammatical
reading of the statute after the 1974 amendment is that the first clause ("[h]ad in
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No. 14AP-971
employment at least one individual") now stands on its own and is not restricted by the
remainder.
{¶ 34} Other than our statement in Evans that "[t]he definition of 'employer'
includes individuals who 'ha[ve] in employment at least one individual,' " no court has
squarely addressed the argument posed by Delphi and no other express language in
Amended Substitute Senate Bill 52 exists as a statement of legislative intent to instruct us
otherwise. See Evans at ¶ 14; Am.Sub.S.B. No. 52, 135 Ohio Laws, Part I, 201, et seq.
Thus, we must interpret the statute as it exists now by its plain grammatical meaning. See
R.C. 1.41 (instructing that sections "1.41 to 1.59, inclusive, of the Revised Code apply to all
statutes * * * and to rules adopted under them"; R.C. 1.47(B) and (C) (instructing readers
that "[t]he entire statute is intended to be effective," and "a just and reasonable result is
intended"); Levin at ¶ 19. We, therefore, reject Delphi's interpretation and hold that an
employer, as the law currently stands, includes any organization (except a non-profit) that
"subsequent to December 31, 1971 * * * [h]ad in employment at least one individual."6
R.C. 4141.01(A)(1)(a).
{¶ 35} ODJFS' sole assignment of error is sustained.
V. CONCLUSION
{¶ 36} The Franklin County Court of Common Pleas erred as a matter of law in
interpreting and applying the phrase "at the time of the transfer." As a result, it
erroneously reached the conclusion that simultaneous employment of officers was
necessary to show common management at an instant of transfer determined by a
contractual effective date. Reliable, probative, and substantial evidence in the record
showed that New Delphi was an employer and shared common ownership with Old
Delphi "at the time of the transfer" as plainly and reasonably interpreted to encompass
the period during which acts necessary to the transfer occurred. Accordingly, we find that
the Franklin County Court of Common Pleas abused its discretion in reversing the
decision of the UCRC when it erred as matter of law.
Judgment reversed.
TYACK, P.J., and DORRIAN, J., concur.
6 We note, however, that "in the case of political subdivisions or their instrumentalities," this definition
applies only "subsequent to December 31, 1973." R.C. 4141.01(A)(1).