From the Bench

Recent labor/employment decisions

OHIO SUPREME COURT

Leininger v. Pioneer Nat’l Latex

2007 Ohio 4921; 2007 Ohio LEXIS 2229 (September 27, 2007).
Decided 6-1, Justice Paul Pfeifer dissenting.
There is no state common-law tort of wrongful discharge based on the public policy against age discrimination. Remedies provided by the Ohio Civil Rights Act (Ohio Rev. Code § 4112.01, et. seq) are sufficient to compensate employees unlawfully terminated because of age. “After considering our prior decisions, we conclude it is unnecessary to recognize a common-law claim when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and when those remedies adequately protect society’s interest by discouraging the wrongful conduct,” Justice Judith Ann Lanzinger wrote for the majority. In his dissent, Pfeifer wrote: “The role of the common law is not to fill in gaps left by statutory remedies, but to adjust the acceptable breadth of employment at will, a common-law creation. There is no reason that the statutory tail should wag the common-law dog in this area of the law. . .”

State ex rel. Gross v. Indus. Comm.

2007 Ohio 4916 (September 27, 2007)
Decided 5-2, Justices Maureen O’Connor and Judith Ann Lanzinger dissenting.
Reinstated workers’ compensation benefits for a 16-year-old Columbus fast-food worker who was fired for committing the workplace safety violation that resulted in his injuries. Just nine month earlier, the court had affirmed an Industrial Commission ruling terminating the employee’s temporary total disability benefits on grounds that the safety violation constituted “voluntary abandonment” of his employment and, therefore, disqualified him. Upon reconsideration, the court held that while the employee’s termination was justified, it certainly was not voluntary. The court also noted that the voluntary abandonment doctrine has never been applied to conduct prior to or contemporaneous with a workplace injury and the court, in its original decision, never intended to expand the doctrine or to create an exception based on willful or deliberate violation of workplace rules. Such an expansion or exception is the purview of the legislature, not the court, Justice Evelyn Lundberg Stratton wrote for the majority.

Summit Cty. Children Servs. Bd. v. Communication Workers of Am., Local 4546

113 Ohio St.3d 291; 2007 Ohio 1949; 2007 Ohio LEXIS 1129 (May 9, 2007).
Unanimous decision.
In the absence of a definition of “good cause” in a collective bargaining agreement, an arbitrator did not exceed his authority by applying a widely used test from case law that considers an employee’s record of service and other mitigating circumstances. The decision reversed rulings by the Summit County Common Pleas Court and 9th District Court of Appeals, which had held that the arbitrator should have used the legal dictionary definition of good cause rather than a widely-used, seven-part test first enunciated by federal arbitrator Carroll Daugherty in 1972. While the lower courts were correct that an arbitrator must construe terms in a collective bargaining agreement according to their plain and ordinary meaning, Justice Maureen O’Connor wrote for the court, they were wrong by “focusing myopically” on Black’s Law Dictionary, particularly since the Daugherty test “is part of the plain and ordinary meaning of ‘good cause’ in labor arbitrations.

Lorain Cty. Aud. v. Ohio Unemp. Comp. Rev. Comm.

113 Ohio St.3d 124; 2007 Ohio 1247; 2007 LEXIS 789 (April 4, 2007).
Decided 4-3, Chief Justice Thomas J. Moyer, Justice Evelyn Lundberg Stratton and Judge H.J. Bressler of the 12th District Court of Appeals sitting on assignment dissenting.
An employee who has worked the maximum number of hours under an intermittent employment contract is neither “voluntarily unemployed” nor “discharged for good cause,” and is eligible for state unemployment compensation benefits. The Lorain County Common Pleas Court had declared the employee, a registered nurse at the county jail, ineligible for benefits during a six-week period in which she was not scheduled to work, reasoning that she had “anticipated and agreed to” being without work after completing 1,000 hours in a fiscal year and, therefore, was not “involuntarily unemployed.” The 9th District Court of Appeals affirmed, but certified that its decision was in conflict with rulings in three other appellate districts. In resolving that conflict, the majority held that the Lorain and 9th District courts had erred by applying to the employee a narrow case-law exception to eligibility for unemployment benefits that properly applies only to union members. “When an employee has a termination package pursuant to a collective-bargaining agreement between her union and the employer, the employee is deemed to have accepted the benefits of the package, and waived her right to (state unemployment) benefits, in return for her agreement to be terminated at a certain time,” Justice Maureen O’Connor wrote for the narrow majority. “. . .Employees who do not have the protection of union bargaining are not subject to this exception and are unable to waive their rights to unemployment benefits even if they agree to be discharged at a certain time.” In its dissent, the minority, led by Judge Bressler, agreed with the majority that completion of a temporary employment contract does not disqualify a worker from receiving unemployment benefits, but noted that the employee had not completed her contract and that the six-week layoff was only a temporary “gap” between to distinct periods of employment covered by that contract.

SIXTH U.S. CIRCUIT COURT OF APPEALS

Parker v. General Extrusions, Inc.

491 F.3d 596; 2007 U.S. App. LEXIS 15176 (June 26, 2007).
Reinstated an award of $75,000 in punitive damages to a shop worker on her hostile work environment claim under Title VII of the Civil Rights Act of 1964, as amended (42 USCS § 2000e, et seq.). The U.S. District Court for the Northern District of Ohio at Youngstown had set aside the award, reasoning that only one of the employees who had harassed the employee was a “managerial agent” of the employer, that the managerial agent had not act with the requisite malice or reckless indifference, and that the employer had made a good-faith effort to comply with Title VII. Stepping over the district court’s first ground for overturning the punitive damages award, the three-judge panel found that the legal analysis on the second and third grounds was not supported by the evidence. The panel found that the harassment had been continuous and serious, that the blame fell on the managerial agent, in this case, the human resources director, and that his failure to act to stop or even seriously investigate the employee’s allegations of harassment “indicates quite clearly that (the human resources director) was, at the very least, recklessly indifferent to her plight.” And while the employer had a written anti-discrimination policy, given the HR director’s conduct and other evidence, a reasonable juror could conclude that the company was not making a good-faith effort to ensure that its policy actually was being enforced.

Klepsky v. United Parcel Service, Inc.

489 F.3d 264; 2007 U.S. App. LEXIS 13703 (June 12, 2007).
Employee’s lawsuit alleging that he was terminated in violation of Ohio public policy and the Ohio Whistleblower Protection Act (Ohio Rev. Code Ann. §§ 4113.51 and 4113.52) was properly removed to federal court because part of the relief sought by the employee (reinstatement) implicated rights under a collective-bargaining agreement and, therefore, his state-law claims were preempted by Section 301 of the Labor Management Relations Act (29 USCS § 185). Separately, the three-judge panel affirmed summary judgment in favor of the employer, agreeing with the U.S. District Court for the Northern District of Ohio that: (1) the employee could not sue under Ohio’s public policy exception to the employment-at-will doctrine, because he was a union member; (2) the employer had offered a legitimate, non-retaliatory reason for terminating the employee (his failure to disclose he was taking anti-seizure medicine that precluded him from operating a commercial motor vehicle under Department of Transportation regulations); and (3) the employee failed to establish that pretext.

EIGHTH DISTRICT COURT OF APPEALS (CUYAHOGA COUNTY)

Continental Airlines Inc., v. Director, Ohio Dept. of Job and Family Services

2007 Ohio 5434; 2007 Ohio App. LEXIS 4777 (October 11, 2007).
Collective-bargaining agreement that required flight attendant to take maternity leave after the 27th week of pregnancy was “voluntarily unemployed” and, therefore, not eligible for state unemployment compensation benefits. Relying on the Ohio Supreme Court’s decision only months earlier in Lorain Cty. Aud. v. Ohio Unemp. Comp. Rev. Comm. (see above), a 1963 ruling by the Franklin County Court of Appeals (Leach v. Columbus Plastics Products, Inc. 92 Ohio Law Abs. 212) and its own 1975 ruling in May Dept. Stores Co. v. Ohio Bur. Of Emp. Servs. Bd. of Rev. (49 Ohio App.2d 21), the court reasoned that the maternity-leave policy “was not unilaterally imposed, but mutually agreed upon at arm’s length by the parties to the collective bargaining agreement. These terms were not one-sided; the union negotiated for the accrual of seniority while on maternity leave, continued coverage under Continental’s health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of the maternity. . .These concessions compel the conclusion under Lorain County that Continental did not act unilaterally by imposing the maternity leave policy. . . Peters became pregnant and placed herself in the condition where the company must comply with the (collective bargaining agreement), the only logical conclusion is that she voluntarily accepted the status of having been placed on leave.”

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