Angelkovski v. Buckeye Potato Chips Co., Inc.

• Citation: 11 OBR 242,11 Ohio App.3d 159,463 N.E.2d 1280
• Parties: , 11 O.B.R. 242 ANGELKOVSKI, Appellant, v. BUCKEYE POTATO CHIPS COMPANY, INC. et al., Appellees.
• Decision Date: 27 September 1983
• Court: Ohio Court of Appeals

Page 159

11 Ohio App.3d 159

463 N.E.2d 1280, 11 O.B.R. 242

ANGELKOVSKI, Appellant, v. BUCKEYE POTATO CHIPS COMPANY, INC. et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 27, 1983.

Syllabus by the Court

1. The resolution of purely factual questions is for the Unemployment Compensation Board of Review and its referees as triers of fact.

2. The role of the court of common pleas upon appeal from the Unemployment Compensation Board of Review based upon factual grounds is limited to determining whether the board's decision is supported by evidence in the record. A decision supported by some competent, credible evidence going to all the essential elements of the dispute will not be reversed as being against the manifest weight of the evidence.

3. An appellate court, in reviewing a determination of a court of common pleas on manifest weight of the evidence on appeal from the board of review, may reverse only upon a showing that the trial court abused its discretion. In this context, abuse of discretion connotes more than an error of judgment; it implies a decision which is without a reasonable basis, one which is clearly wrong.

4. "Just cause" within the meaning of R.C. 4141.29(D)(2)(a) is that kind of conduct which an ordinarily intelligent person would regard as a justifiable reason for discharging an employee. The conduct need not reach the level of misconduct, but there must be some fault on the part of the employee.

Marcia E. Palof and Legal Aid Society of Columbus, Columbus, for appellant.

William R. Neale, Columbus, for appellee Buckeye Potato Chips Co.

Anthony J. Celebrezze, Jr., Atty. Gen., and Marquette Evans, Asst. Atty. Gen., for appellee Ohio Bureau of Employment Services.

NORRIS, Judge.

Claimant-appellant, Riste Angelkovski, appeals from an order of the trial court affirming a decision of the Unemployment Compensation Board of Review that he had been discharged from his employment for just cause and, therefore, was not entitled to unemployment compensation benefits.

Claimant's application for benefits was denied by the administrator. Upon appeal to the board of review, a hearing was held before a referee at which claimant was the sole witness. Relying upon the administrator's file and claimant's testimony, the referee affirmed the administrator's decision. The board of review disallowed a further appeal. Claimant then appealed to the court of common pleas, which reversed the board on the basis that its referee should not have relied upon a memorandum of the employer, appearing in the administrator's file, as evidence. Upon remand, the board of review allowed a further appeal, and another hearing was conducted, at which claimant and three representatives of the employer appeared.

In affirming the earlier decision of its referee (which had in turn upheld the administrator), the board of review made these findings of fact:

" * * * On the claimant's last day of employment, he had specifically been directed by his supervisor to pile all cardboard removed from skids in a specific area. During the workday, the claimant's supervisor questioned him on at least three occasions concerning whether or not the claimant was following this directive. On the last occasion, the claimant and the supervisor exchanged heated words and at the conclusion of the discussion the claimant used the term 'bitch.' "

The board then stated the legal basis for its decision:

"The claimant was discharged by Buckeye Potato Chips Company, Inc., on the basis of his interactions with his fellow employees and his supervisor. Claimant had been warned concerning arguments with fellow employees prior to the last incident which occurred between the claimant and his immediate supervisor who was a female. A supervisor has the authority to question a subordinate concerning the subordinate's work output and whether or not the subordinate is properly following directives. The claimant's actions of engaging the supervisor in a heated exchange of words and then directing a profanity to her clearly constitutes insubordination. The supervisor was within her rights to question the claimant's work and the claimant was unjustified in his reaction. From a careful review of the entire record, it is the finding of the Board of Review that the claimant's actions clearly constituted insubordination and it will be held that the resulting discharge constituted a discharge for just cause in connection with the work."

Claimant again appealed, and the court of common pleas affirmed finding that the board's order was "not unlawful, unreasonable, or against the manifest weight of the evidence, and is supported by reliable, substantial and probative evidence, and is not an abuse of discretion * * *."

Claimant raises two assignments of error:

"I. The court of common pleas erred in finding that the board of review's conclusions was [sic ] not unreasonable and against the manifest weight of the evidence and that it was supported by reliable, substantive, and probative evidence; the evidence presented did not support a conclusion that appellant's actions constituted insubordination.

"II. The court of common pleas erred in finding that the board of review's decision was not unlawful; the evidence presented did not show that there was 'just cause' for discharge."

In his first assignment of error, claimant argues that the evidence before the board did not support its decision and that the court of common pleas therefore erred in not finding that the decision was against the manifest weight of the evidence.

The standard of review to be applied by the court of common pleas in appeals from decisions of the board of review is prescribed by statute. R.C. 4141.28(O) provides, in pertinent part:

" * * * If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. * * * "

Contrary to claimant's assertion, the board of review was permitted to take note of the "Memorandum For The Record" prepared by the employer's distribution manager on October 1, 1980, which summarized the background and basis of claimant's termination. The memorandum was a part of the administrator's file and was therefore to be considered by the board and its referees. R.C. 4141.28(J); Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 430 N.E.2d 468 .

The resolution of purely factual questions is for the board of...