Hertelendy v. Great Lakes Architectural Serv. Sys., Inc.

[Cite as Hertelendy v. Great Lakes Architectural Serv. Sys., Inc., 2012-Ohio-4157.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97782
GEORGE Z. HERTELENDY
PLAINTIFF-APPELLANT
vs.
GREAT LAKES ARCHITECTURAL SERVICE
SYSTEMS, INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-759133
BEFORE: Keough, J., Blackmon, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: September 13, 2012
ATTORNEY FOR APPELLANT
Lester S. Potash
55 Public Square
Suite 1717
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
For Ohio Department of Job & Family Services
Mike Dewine
Ohio Attorney General
BY: Patrick MacQueeney
Assistant Attorney General
615 West Superior Avenue
11th Floor
Cleveland, OH 44113-1899
For Great Lakes Architectural Service Systems
Bruce L. Waterhouse
25 West Prospect Avenue
Republic Building, Suite 1400
Cleveland, OH 44115
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, George Z. Hertelendy (“Hertelendy”), appeals the trial
court’s decision affirming a judgment of the Ohio Unemployment Compensation Review
Commission (“UCRC”) that denied his claim for unemployment benefits. For the
following reasons, we reverse that judgment and remand the matter to the trial court with
instructions.
{¶2} Hertelendy was hired by appellee Great Lakes Architectural Service Systems,
Inc. (“Great Lakes”) on August 25, 2010. Hertelendy’s application for employment
indicated he was applying for a “fabricator” position. He also noted on his application
that he was convicted for “driving — OVI.” On August 30, 2010, he was terminated
from employment with Great Lakes because, according to Mike Kelly (“Kelly”),
president of Great Lakes, Hertelendy was uninsurable by the company’s insurance carrier
due to his driving record and thus unable to perform his job as a fabricator and driver.
{¶3} In September 2010, after being terminated from employment with Great
Lakes, Hertelendy filed an application for unemployment compensation with appellee
Ohio Department of Job and Family Services. The agency disallowed the application,
determining that Hertelendy had been discharged with just cause. On appeal, the
director’s redetermination affirmed the denial of benefits. A second appeal followed,
and the matter was transferred to the UCRC for an evidentiary hearing.
{¶4} On March 2, 2011, a telephone hearing was conducted. Prior to taking any
testimony, the hearing officer inquired as to the two witnesses Hertelendy listed for the
hearing. Hertelendy explained that Bob Schibli was a general union organizer of
Ironworkers Local 468 and that “he got me the job at [Great Lakes] because they needed
an ironworker and uh so he uh set me up with Mike Kelly and uh that’s when I went for
the interview.” Hertelendy said that his other witness was John Bielak, union president
of Ironworkers Local 468. The hearing officer then asked Kelly about his witness —
Kathy Kelly. Kelly stated that Ms. Kelly was the secretary and treasurer of Great Lakes,
but that he had more knowledge about Hertelendy’s employment. The hearing officer
then explained the procedure of the hearing, including that if he determined that the
parties’ witnesses were relevant and material, he would call them to testify.
{¶5} Kelly testified that Hertelendy was employed with his company from August
25 to August 30, 2010 as “one of the shop men and he was to be the, one of the drivers
and basically work in the shop.” Kelly stated that Hertelendy was a member of the
Ironworkers Local 468 union, which was one of the unions within Great Lakes. The
other union was for drivers who were employed at Great Lakes. When questioned about
the circumstances surrounding Hertelendy’s hiring, Kelly stated that when he hired
Hertelendy, the company “needed a driver and also to see how he would do in the
fabrication which is his training but he said he’d be able to drive.”
{¶6} During cross-examination of Kelly, Hertelendy disputed that he was hired as
a driver, but instead maintained he was hired as a fabricator. Hertelendy stated during
his cross-examination of Kelly that “I was hired as a fabricator and that was per Bob
Schibli, that was, I was the ironworker for you [Kelly].” The hearing officer followed up
and asked Kelly if Hertelendy was hired as a fabricator or as a fabricator and driver.
Kelly responded that he advised Hertelendy when he was hired that driving was one of his
main duties because they were a small company and materials needed to be delivered out
in the field. Hertelendy also stated during his cross-examination of Kelly that he was
able to drive, but that he “wasn’t hired as a driver the way I understood it. The way I
understood it and uh it was a fabricator inside ironworkers and uh do some repair field
work.”
{¶7} After Kelly testified, the hearing officer asked what Kathy Kelly would
testify about. Kelly stated that she handles the payroll. The hearing officer then
determined that her testimony was not needed, which Kelly agreed.
{¶8} Hertelendy testified that he was hired as a fabricator and he did not know he
had to drive trucks. He stated he was a member of Ironworkers Local 468, and denied he
was told when he was hired that part of his duties would be driving to deliver materials to
the field. Additionally, he denied he was told at the beginning of his employment that he
had to be insured by Great Lakes’ insurance company. During cross-examination, he
admitted that he had a DUI conviction and did not tell Kelly during the interview that he
had any restrictions on his driver’s license. Thereafter, the hearing officer said that he
did not “believe [he] need[ed] to take the testimony of Mr. Shibly [sic] or Mr. Balke
[sic].”
{¶9} In his closing statement, Hertelendy stated that he disclosed on his
employment application that he was convicted of “OVI” and he also gave Great Lakes his
driver’s license to copy. Additionally, Hertelendy explained that he had court-ordered
driving privileges to drive to and from work and during employment, and was able to
drive employment vehicles.
{¶10} The hearing officer issued a decision affirming the director’s
redetermination that Hertelendy was discharged for just cause. In his findings of fact,
the hearing officer found:
[Hertelendy] was required to operate company vehicles delivering material
to the field. As such, it was required that the claimant be insurable by the
employer’s insurance company.
When the claimant first arrived at work, it was noticed that his vehicle had
yellow plates on it. Mr. Kelly checked with his insurance company and his
insurance company determined that because the claimant had a DUI on his
record, he was not insurable.
{¶11} In his decision, the hearing officer reasoned that “[t]he facts set forth above
show that the claimant was not insurable to the employer’s insurance company which was
a condition of employment. The claimant was discharged with just cause in connection
with work.”
{¶12} Hertelendy subsequently filed a Request for Review, and on June 8, 2011,
the full UCRC issued a decision disallowing Hertelendy’s request. Hertelendy appealed
to the common pleas court arguing that the UCRC’s decision was against the manifest
weight of the evidence and that he was denied a fair hearing, and thus denied due process.
Following briefing and a review of the record, the court found that the decision of the
UCRC was not unlawful, unreasonable, or against the manifest weight of the evidence
and denied the appeal. The court did not address Hertelendy’s due process argument.
{¶13} Hertelendy appeals, raising as his sole assignment of error that the trial court
erred in affirming the denial of his application for unemployment benefits. He contends
that he was denied a fair UCRC hearing because he was unable to question his witnesses
and that the decision of the UCRC was unlawful, unreasonable, and against the manifest
weight of the evidence.
{¶14} R.C. 4141.29 sets forth the eligibility and qualifications for unemployment
benefits:
(D) * * * [N]o individual may serve a waiting period or be paid benefits
under the following conditions:
***
(2) For the duration of the individual’s unemployment if the director finds
that:
(a) The individual quit work without just cause or has been discharged for
just cause in connection with the individual’s work * * * .
{¶15} The Ohio Supreme Court recently reiterated the standard of review for
unemployment compensation appeals in Williams v. Ohio Dept. of Job & Family Servs.,
129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 20:
The Unemployment Compensation Review Commission’s determination of
whether a claimant was discharged with just cause is appealable to the court
of common pleas: “If the court finds that the decision of the commission
was unlawful, unreasonable, or against the manifest weight of the evidence,
it shall reverse, vacate, or modify the decision, or remand the matter to the
commission. Otherwise, the court shall affirm the decision of the
commission.” R.C. 4141.282(H). This limited standard of review applies
to all appellate courts. Irvine v. Unemp. Comp. Bd. of Review (1985), 19
Ohio St.3d 15, 18, 482 N.E.2d 587.
{¶16} While appellate courts are not permitted to make factual findings or to
determine the credibility of witnesses, they do have the duty to determine whether the
board’s decision is supported by the evidence in the record. Id., citing Irvine. This duty
is shared by all reviewing courts, from the first level of review in the common pleas court
through the final appeal. Therefore, the focus of an appellate court when reviewing an
unemployment compensation appeal is upon the commission’s — not the trial court’s —
decision. Howard v. Electronic Classroom of Tomorrow, 10th Dist. No. 11AP-159,
2011-Ohio 6059, ¶ 12, citing Moore v. Comparison Market, Inc., 9th Dist. No. 23255,
2006-Ohio-6382, ¶ 8.
{¶17} Hertelendy contends that he was denied a fair hearing because the hearing
officer prevented him from calling witnesses that would have testified about the capacity
in which he was hired — as a fabricator and not a driver.
{¶18} The principles of due process in administrative hearings apply to all
hearings conducted under the authority of the commission. R.C. 4141.281(C)(2). The
key factor in deciding whether a hearing satisfies procedural due process is whether the
claimant had the opportunity to present the facts that demonstrate he was entitled to
unemployment benefits. Howard at ¶ 15, citing Atkins v. Ohio Dept. Of Job & Family
Servs., 10th Dist. No. 08AP-182, 2008-Ohio-4109, ¶ 17. This is because “‘[t]he object
of the hearing is to ascertain the facts that may or may not entitle the claimant to
unemployment benefits.’” Id., quoting Bulatko v. Ohio Dept. Of Job & Family Servs.,
7th Dist. No. 07 MA 124, 2008-Ohio-1061, ¶ 11.
{¶19} While R.C. 4141.281(C)(2) requires that commission hearings satisfy due
process principles, it also provides that “[i]n conducting hearings, all hearing officers
shall control the conduct of the hearing, exclude irrelevant and cumulative evidence, and
give weight to the kind of evidence on which reasonably prudent persons are accustomed
to rely in the conduct of serious affairs.” Thus, “‘[t]he hearing officer has broad
discretion in accepting and rejecting evidence and in conducting the hearing in general.’”
Howard at ¶ 16, quoting Bulatko at ¶ 11. “The hearing officer’s discretion is tempered
only to the extent that he must afford each party an opportunity to present evidence that
provides insight into the very subject of the dispute.” Howard at ¶ 16, citing Owens v.
Ohio Bur. of Emp. Servs., 135 Ohio App.3d 217, 220, 733 N.E.2d 628 (1st Dist.1999).
{¶20} In this case, Hertelendy wanted to call two witnesses to testify at the
hearing. The hearing officer determined that Hertelendy’s witnesses were not needed,
even though the hearing officer did not inquire into the nature of their testimony, like he
did for Kelly’s witness. Instead, the hearing officer summarily determined they were not
needed. According to Hertelendy, Bob Schibli and John Bielak would have testified that
he was hired as a fabricator.
{¶21} On appeal, the appellees contend that the hearing officer exercised his
discretion in excluding Hertelendy’s witnesses because their testimony would have been
cumulative to Hertelendy’s testimony. While a hearing officer may exclude cumulative,
irrelevant, or immaterial testimony, this discretion is not unfettered. When the testimony
of witnesses would allow the hearing officer to ascertain the facts that may or may not
entitle the claimant to benefits, then the testimony is relevant and material. See Howard
at ¶ 17; Perry v. Buckeye Community Servs., 48 Ohio App.3d 140, 142, 548 N.E.2d 1308(4th Dist.1988); but see Powell v. Brown Publishing Co., 3d Dist. No. 10-03-03,
2003-Ohio-2566, ¶ 7 (hearing officer determined testimony of claimant’s witness was not
needed after the officer inquired as to the nature of the testimony).
{¶22} In this case, conflicting testimony was given regarding Hertelendy’s job title
and description and in what capacity he was hired. Hertelendy testified that he applied
for and was hired as a fabricator and was not advised that he had to drive for employment.
Kelly testified that Hertelendy was hired as one of the drivers and to work in the shop.
He also testified that when Hertelendy was hired, the company needed a driver, but
Hertelendy would also be considered as a fabricator because that was his training.
{¶23} No job description was submitted to the hearing officer, nor is one part of
the UCRC record. According to Hertelendy’s testimony, Bob Schibli from his union
referred him to Kelly. Because of the conflicting testimony and lack of a job description,
the testimony of Hertelendy’s witnesses would have been relevant and material to the
issue of Hertelendy’s job capacity.
{¶24} If no dispute as to Hertelendy’s position and job duties when he was hired
existed, the testimony of his two witnesses may not have been material or relevant as the
hearing officer concluded. However, the hearing officer concluded that because
Hertelendy was uninsurable, he was terminated with just cause. Therefore, the ultimate
issue in this case was whether Hertelendy was hired as a fabricator or driver. If he was
hired as a fabricator, whether he was insurable would be of no consequence in relation to
his job duties as fabricator. Hertelendy’s witnesses would have provided relevant and
material testimony relating to this issue and would have allowed the hearing officer to
“ascertain the facts that may or may not entitle the claimant to benefits.”
{¶25} Furthermore, Hertelendy testified that he was insurable, had occupational
driving privileges, and had disclosed on his application that he had an OVI on his record.
Kelly testified that after he discovered Hertelendy’s “yellow plates” on his vehicle —
which was after Hertelendy was hired — he called his insurance company and it advised
him that Hertelendy was uninsurable due to his driving record. Again, no documentation
was submitted to the hearing officer evidencing that Kelly’s insurance company would
not insure Hertelendy. If driving was a condition precedent of employment it is
interesting that Kelly did not verify Hertelendy’s insurability prior to hiring him.
{¶26} Great Lakes relies on a variety of cases from this district for its proposition
that a person can be terminated from employment for just cause when that person is not
insurable to operate a company’s vehicles for employment purposes. See, e.g., Piazza v.
Ohio Bur. of Emp. Servs., 72 Ohio App.3d 353, 594 N.E.2d 695 (8th Dist.1991).
However, the cases cited by Great Lakes are easily distinguishable — the status of the
employees’ driver’s licenses in each of these cases changed during the term of
employment with their respective employers, which rendered them uninsurable after they
knew their job description and the employer’s policies. In this case, Hertelendy’s license
status did not change after his employment commenced.
{¶27} Nevertheless, we decline to reach the ultimate issue of the appeal —
whether Hertelendy was terminated for just cause — because we find that there is
insufficient evidence in the record to support the commission’s decision and that
Hertelendy was denied a fair hearing because he was precluded from calling his witnesses
at the UCRC hearing. The hearing officer abused his discretion by not allowing
Hertelendy to present testimony that would “ascertain the facts that may or may not
entitle” him to benefits.
{¶28} Accordingly, we find merit to Hertelendy’s assignment of error to the
extent indicated and reverse the judgment of the trial court. We remand the matter to the
trial court with instructions to reverse the judgment of the commission and remand the
matter for another hearing consistent with the law and this decision.
{¶29} Judgment reversed and remanded with instructions.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR