Gates v. Board of Ed. of River Local School Dist.

• Decision Date: 05 July 1967
• Docket Number: 40599,Nos. 40598,s. 40598
• Parties: , 40 O.O.2d 91 GATES, Appellant, v. BOARD OF EDUCATION OF RIVER LOCAL SCHOOL DISTRICT, Appellee. NIPPERT, Appellant, v. BOARD OF EDUCATION OF RIVER LOCAL SCHOOL DISTRICT, Appellee.
• Court: Ohio Supreme Court

Page 83

11 Ohio St.2d 83

228 N.E.2d 298, 40 O.O.2d 91

GATES, Appellant, v. BOARD OF EDUCATION OF RIVER LOCAL SCHOOL DISTRICT, Appellee.

NIPPERT, Appellant, v. BOARD OF EDUCATION OF RIVER LOCAL SCHOOL DISTRICT, Appellee.

Nos. 40598, 40599.

Supreme Court of Ohio.

July 5, 1967.

Syllabus by the Court

1. Section 3319.081, Revised Code, does not prevent the board of education of a local school district from employing nonteaching personnel for an indeterminate period, to be measured by the work required to be accomplished as determined by the board.

2. In the absence of a contract of employment, either written or parol, between a local school district board of education and a nonteaching employee clearly expressive of the terms and conditions of his employment, such features must be determined from the conduct and statements of the parties and the circumstances surrounding the same and are within the province of the trier of the facts; and a finding of a Common Pleas Court, as the trier of the facts, will be disturbed by the Supreme Court only if unsupported by the evidence and not if that finding merely appears to be against the weight of the evidence.

3. Neither Section 3319.081, Revised Code, nor any other provisions of law requires a board of education of a local school district to continue the payment of compensation to a nonteaching employee, whose contract is for an indeterminate period, after the board determines that no further work is required of such employee and no conditional or substitute employees are engaged by the board to perform the same work which would have been done by such employee, where such employee has been engaged in actual service for such board for more than 120 days of the school year in which the employment is thus discontinued and for each of five consecutive years immediately prior thereto.

The facts are stated in the opinion.

Lucas, Prendergast, Albright & Warren and Rankin M. Gibson, Columbus, for appellants.

George F. Burkhart, Pros. Atty., for appellee.

SCHNEIDER, Judge.

Jurisdiction of these cases was assumed because the facts indicated a substantial question involving public interest, as that term was construed by the delegates to the Constitutional convention of 1912, that is, an interpretation of Section 3319.081, Revised Code, ¹ relating to the employment of nonteaching personnel by a local board of education, of which there are hundreds in the state.

Thomas A. Gates and Walter J. Nippert, plaintiffs to declaratory judgments in the Common Pleas Court of Monroe County, from the affirmance of which these appeals are pursued, were nonteaching employees ('maintenance helpers') of the Board of Education of the River Local School District from July 1, 1959, to March 12, 1965. The explicit terms and conditions of their employment, which were never reduced to formal written agreements, are obscured by ambiguities appearing in the payroll records and in the minutes of the board. Indeed, no minutes pertinent to the first two school years ² appear in the record. Nor does the petition set forth the plaintiffs' claims in detail.

However, the appellants' position, as expressed in brief and argument, is that their employment for each of the first two school years (ending June 30, 1960, and June 30, 1961) was on a yearly basis. On the other hand, it is not contested that Section 3319.081, Revised Code, does not prevent the board of education of a local school district from employing nonteaching personnel for an indeterminate period to be measured by the work reuqired to be accomplished as determined by the board.

Nor is it disputed by appellee that appellants rendered more than 120 days of service in each of the years in question. ³ Thus, if the appellants were employed for a yearly term in the school year ending in June 1960 (the base year) and again for the following school year, the requirement of paragraph (A) of Section 3319.081, Revised Code, would be fulfilled, and paragraph (B) would mandate a two-year contract for each of the school bienniums ending in 1963 and in 1965, in which case appellants would be entitled at least to their full salaries in some of those years in which they did not receive them. If, however, their employment was for an indeterminate period, they have been paid according to the terms of their contracts, that is, they make no claim that they have not been paid for any services actually performed or for less than 120 days in any of the years involved.

The question in these appeals is, therefore, principally one of discerning the terms and conditions of their employment, which, in the absence of contracts clearly expressive of those features, must be determined from the statements and conduct of the parties and the circumstances surrounding the same and is within the province of the trier of the facts.

The Common Pleas Court found that 'plaintiffs were hired and kept on the payroll to furnish labor on special tasks as they arose from time to time in the construction and improvement program of the defendant. On the other hand, the other (regular) two maintenance men were charged with the routine maintenance work. * * * (; that) occasionally, because of the necessities of the work and the availability of the men, plaintiffs and the other two maintenance men worked together, either on improvement program work or routine maintenance * * * (; and that) (p)laintiffs were extra men hired to perform the extra general labor required.'

If the evidence supports those findings, they will not be disturbed by this courtEven though they may appear to be against the weight of the evidence. ⁴ Already noticed is the fact that appellants worked more than a full school year in each year in question. Indeed, they averaged nearly 250 days per year, were out of 'employment' but three weeks in the year 1961, one week in 1962 and six weeks in each of the years 1963 and 1964, and, except for these weeks, never worked less than 20 days in any month. In 1965, they had worked virtually full time until March 12th, the effective date of their last termination of employment. Near the end of each of the four school years prior thereto, the board systematically 'terminated' their services effective, respectively, June 30, 1961, May 31, 1962, April 30, 1963, and April 24, 1964, and each time shortly thereafter rehired them for the following year.

On the payroll sheets for 1959 and a portion of 1960, appears the notation that appellants were 'employed by day' at 'rate per day' of $13.75. The new sheets commencing in September 1960, however, bear the simple legend, 'employed,' at a monthly rate. On each of the appellants' separate records commencing in Septembr 1962, the legend, 'employed per day-$16 per day,' is stricken over.

During the entire period in question sick leave was granted and meticulously accounted for on the payroll records and vacation pay was awarded for the first two school years in question.

The foregoing supports the contention that appellants were employed on yearly contracts and that appellee deliberately attempted to protect itself from the further commitments mandated by the statute by the device of annual discharges.

However, it appears that appellants' understanding of the terms of their employment was otherwise. On cross-examination, Gates testified as follows:

'Q. In your employment, was there anything-did you understand that there was anything that would guarantee you so many days of employment throughout the year? A. Well, no. I couldn't say that there was anything to insure us of any steady employment or specified at any time we would be hired for two days or two years.

'Q. Your understanding was you were employed if there was work to do and if there wasn't work-A. I would take from Paul Zink-I had the opinion as long as there was work we would have the work to do.

'Q. But you didn't understand that you would work three hundred and sixty-five days a year? A. No.'

The following appears from the redirect examination of Gates:

'Q. Were you ever employed by the defendant at an annual salary or daily salary or monthly salary, or what basis-A. Monthly salary. The same as the rest of the school was paid, we was paid (sic).

'Q. Were you paid monthly or hired on an annual basis? (Emphasis supplied.) A. Monthly. Paid monthly.

'Q. You don't ever recall any time that the school board paid you on an annual basis? A. No, sir; there wasn't any.'

To the same effect was Nippert's testimony on direct examination:

'Q. And were you employed on a salary or a daily wage or hourly wage or how were you employed? A. Well, I was employed-I'll have to explain that in my own words. Mr. Gibson: All right. A. when I was asked to work he said two hundred and seventy-five a month and this adds up to thirteen seventy-five a day, and when we worked more than twenty days we got an additional thirteen seventy-five for each day we worked over the twenty days.

'Q. I see. So you apparently were hired on a monthly basis, is that what you are saying? A. That was my understanding.'

On cross-examination Nippert testified as follows:

'Q. What was your understanding regarding your employment by the defendant? A. Well, as I know, it was never entirely discussed although as much work as there was at the time we were mostly told that there should be plenty of work for us right on through because I, at the time, was milking a little and I dropped it on account of thinking that it would go right on

'Q. And did you understand at the time that there would be periods when you wouldn't have anything to do? Be laid off temporarily? A. Well, I wasn't told that.

'Q. Well, was it your understanding that you were to work every day? A. Well, that's the way I understood it that we was to work.

'Q. Now, as I understood your testimony a few minutes ago, you understood if you worked twenty days you...