[Cite as Coles v. United Parcel Serv., 2013-Ohio-1428.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

JEFFREY COLES,                                     )
                                                   )      CASE NO. 12 MA 22
        APPELLANT,                                 )
                                                   )
        - VS -                                     )            OPINION
                                                   )
UNITED PARCEL SERVICE, et al.,                     )
                                                   )
        APPELLEE.                                  )


CHARACTER OF PROCEEDINGS:                                 Civil Appeal from Common Pleas
                                                          Court, Case No. 11 CV 65.


JUDGMENT:                                                 Affirmed.


APPEARANCES:
For Appellant:                                            Attorney Jacqueline Coles-Jones
                                                          8597 Squirrel Hill N.E.
                                                          Warren, OH 44484

For Appellee:                                             Mike DeWine
                                                          Ohio Attorney General
                                                          Susan Sheffield
                                                          Asst. Attorney General
                                                          Health & Human Services Section
                                                          Unemployment Compensation Unit
                                                          20 W. Federal Street, 3rd Floor
                                                          Youngstown, OH 44503



JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

                                                          Dated: March 25, 2013
[Cite as Coles v. United Parcel Serv., 2013-Ohio-1428.]
DeGenaro, P.J.
        {¶1}     Plaintiff-Appellant Jeffery D. Coles appeals the January 10, 2012 judgment
of the trial court affirming the denial of his unemployment compensation benefits. Coles,
who was a package delivery driver for Appellee United Parcel Service, Inc. was
terminated from his employment following two off-duty OVI arrests. Coles argues that the
Review Commission erroneously concluded that he was terminated for cause. Coles'
assignment of error is meritless. The Review Commission's decision was not unlawful,
unreasonable, or against the manifest weight of the evidence. Accordingly, the judgment
of the trial court is affirmed.
                                   Facts and Procedural History
        {¶2}     Coles was hired by UPS in 1996 as a truck pre-loader and eventually
became a package car driver approximately six to seven years later. Coles' employment
rights were governed by a Collective Bargaining Agreement between UPS and the
Teamsters Union. The CBA provided that employees would have a "one (1) time
rehabilitation opportunity for alcohol abuse as outlined in Article 16, Section 5. Article 16,
Section 5 of the CBA stated that "an employee shall be permitted to take a leave of
absence for the purpose of undergoing treatment in an approved program for alcoholism
or substance abuse."
        {¶3}     In November 2006, Coles was arrested for an off-duty OVI offense. He
notified UPS, and pursuant to evaluation by an approved independent substance abuse
professional, Coles took a rehabilitation leave of absence so that he could attend six
educational classes. Before returning to work, he signed an agreement entitled UPS/IBT
Alcohol and/or Drug Rehabilitation Agreement," which was developed by UPS and the
Union. Therein, Coles agreed to abstain from further alcohol use.
        {¶4}     On January 23, 2010, Coles was again arrested for an off-duty OVI offense,
he reported the arrest to UPS and was suspended from work. An approved independent
substance abuse professional evaluated Coles on February 3, 2010 and recommended
Coles take part in an intensive outpatient therapy program for alcoholism, seven days per
week for six weeks. Because Coles had already exhausted his one-time rehabilitation
leave, he was terminated from employment with UPS on February 5, 2010. Coles
subsequently grieved his termination, but it was upheld by a joint labor-management
                                                                                        -2-


committee.
       {¶5}   In the meantime, Coles filed an application for unemployment compensation
benefits arising from his termination. On March 4, 2010, Appellee, Director of Ohio
Department of Job and Family Services issued an initial determination, concluding that
Coles had been discharged from employment without just cause, and thus allowing his
claim for benefits. UPS filed a timely appeal and in a redetermination decision the
Director affirmed the decision allowing benefits. UPS next appealed the redetermination
and on May 13, 2010, the Director transferred jurisdiction to the Unemployment
Compensation Review Commission pursuant to R.C. 4141.281(B).
       {¶6}   On October 19, 2010 a telephonic evidentiary hearing was conducted by a
Review Commission hearing officer. The Director presented the testimony of Stacey
Craley, the manager at the UPS Mahoning Valley Building where Coles worked. She
testified that Coles was terminated after two OVI arrests. She testified that after the first
arrest, he exhausted his one-time rehabilitation leave as provided for in the CBA. Further,
she testified that following his first OVI arrest and resulting leave of absence, Coles
signed an agreement indicating he understood he had exhausted his one-time
rehabilitation leave opportunity.
       {¶7}   Coles testified that following his first OVI arrest, he took approximately a
one-month leave of absence to take educational classes, as recommended by the
approved substance abuse professional. Coles also testified that aside from the OVI
issues, he was a good employee. It was his position that the first leave was for
educational, not rehabilitative purposes. As exhibits Coles presented, among other
things, excerpts from the CBA and an affidavit from Linda Burke, a Certified Employee
Assistant for another union, in which she gave her opinion as to the difference between
alcohol treatment and educational classes.
       {¶8}   In a decision mailed on November 3, 2010, the hearing officer reversed the
Director's redetermination decision, concluding that Coles had been discharged by UPS
for just cause in connection with his work. Coles timely requested further review by the
Review Commission, which was denied.
                                                                                       -3-


       {¶9}   Coles timely appealed the Review Commission's decision to the Mahoning
County Court of Common Pleas. On November 2, 2011, the magistrate issued a decision
including findings of fact and conclusions of law, concluding that the Review
Commission's decision was not unlawful, unreasonable or against the manifest weight of
the evidence, and therefore affirmed the Review Commission's decision. Coles filed
objections and after a hearing, the trial court conducted an independent review and
adopted the magistrate's decision in full, without modification on January 10, 2012.
                                       Just Cause
       {¶10} In his sole assignment of error, Coles asserts:
       {¶11} "The decision of the commission is unlawful because the commission and
the trial court failed to apply the governing law and appropriate legal standard."
       {¶12} A claimant bears the burden of proving his entitlement to unemployment-
compensation benefits. Kosky v. Am. Gen. Corp., 7th Dist. No. 03-BE-31, 2004-Ohio-
1541, at ¶9. An unsatisfied claimant may appeal the review commission's decision to the
trial court. R.C. 4141.282(A). The trial court shall reverse, vacate, modify, or remand the
commission's decision if it finds that the decision was unlawful, unreasonable, or against
the manifest weight of the evidence. R.C. 4141.282(H). If the court does not find that the
decision was unlawful, unreasonable, or against the manifest weight of the evidence, then
the court shall affirm the decision. Id.
       {¶13} Our standard of review is the same. See Tzangas, Plakas & Mannos v.
Ohio Bur. of Emp. Serv., 73 Ohio St.3d 694, 696-697, 653 N.E.2d 1207 (1995). That is,
the court of appeals must also determine whether the commission's decision was
unlawful, unreasonable, or against the manifest weight of the evidence.              Guy v.
Steubenville, 147 Ohio App.3d 142, 2002-Ohio-849, 768 N.E.2d 1243, ¶24 (7th Dist.).
       {¶14} "None of the reviewing courts can reverse a commission decision as being
against the manifest weight of the evidence when there is some evidence in the record to
support the commission's decision. * * * When the commission could have reasonably
decided a just-cause issue either way, the courts have no authority to overrule that
decision." Struthers v. Morell, 164 Ohio App.3d 709, 2005-Ohio-6594, 843 N.E.2d 1231,
                                                                                        -4-


¶14 (7th Dist.), citing Irvine v. Unemployment Comp. Bd. of Rev., 19 Ohio St.3d 15, 16,
482 N.E.2d 587 (1985).
       {¶15} R.C. 4141.29(D)(2)(a) provides that an individual is ineligible for
unemployment benefits if he was "discharged for just cause in connection with the
individual's work." The Ohio Supreme Court has defined "just cause" as "that which, to
an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular
act." Irvine at 17; Tzangas, at 697. "Just cause determinations in the unemployment
compensation context, however, also must be consistent with the legislative purpose
underlying the Unemployment Compensation Act." Tzangas at 697. "The act was
intended to provide financial assistance to an individual who had worked, was able and
willing to work, but was temporarily without employment through no fault or agreement of
his own." Id., quoting Irvine at 17.
       {¶16} "[T]he question of fault cannot be rigidly defined, but, rather, can only be
evaluated upon consideration of the particular facts of each case. If an employer has
been reasonable in finding fault on behalf of an employee, then the employer may
terminate the employee with just cause." Tzangas at 698, citing Irvine. " 'The critical
issue is not whether an employee has technically violated some company rule, but * * *
whether the employee, by his actions, [has] demonstrated an unreasonable disregard for
his employer's best interests.' " Astro Shapes, Inc. v. Sevi, 7th Dist. No. 09 MA 105,
2010-Ohio-750, ¶34, quoting Manor West Health Care & Ret. Ctr. v. Ohio Bur. of Emp.
Serv., 7th Dist. No. 93CA95, 1994 WL 718785 (Dec. 23, 1994).
       {¶17} Coles argues that the administrative and trial court decisions were unlawful
for two main reasons. First, he asserts that UPS bypassed the mandatory discipline
procedures in the CBA when terminating him and that therefore he was terminated
without just cause. He claims that since the first leave was for alcohol education classes,
it should not have counted towards his one-time rehabilitation leave under the CBA.
       {¶18} Coles cites a number of cases holding that where an employer "bypasses its
progressive disciplinary system and terminates an employee that employee's discharge is
without cause for unemployment compensation purposes." Peterson v. Director, 4th Dist.
                                                                                       -5-


No. 03CA2738, 2004-Ohio-2030, ¶20, citing In re Claim of Frazee, 10th Dist. No. 84AP-
284 (Dec. 13, 1984). Coles notes that in these and the other progressive discipline cases
he relies on, the focus is not on employee culpability, but rather on whether the employer
followed its stated progressive disciplinary policy.
       {¶19} For example, in Mullen, the claimant was discharged because her disruptive
attitude adversely affected her job performance and her relationship with her fellow
employees. Id. at *3. Under the employer's disciplinary system, three written warnings
were required before an employee could be dismissed. In Mullen's case the employer
only issued one written warning prior to her discharge. Because the employer failed to
comply with its mandatory progressive disciplinary procedure, the Eighth District
concluded the employee was terminated without just cause and therefore entitled to
unemployment compensation benefits. Id. at *5.
       {¶20} Although a majority of appellate districts are uniform in their holdings
regarding progressive discipline cases, the Seventh District has not yet squarely
addressed the issue. In Hord v. Ohio Dept. of Job & Family Servs., 7th Dist. No. 05 JE
48, 2006-Ohio-4382, although Mullen was noted, ultimately the panel determined that the
employer's policy in Hord did not constitute a system of progressive discipline. Id. at ¶36.
       {¶21} Further, the policy at issue in this case cannot be categorized as a
progressive discipline policy; it simply gives the employee a one-time rehabilitation leave
opportunity for drug and alcohol abuse. From the portions of the CBA that are a part of
the record, UPS and the Union created a one-step system of discipline for off-duty
impaired driving situations; a second incident results in termination. Compare Hord v.
Ohio Dept. of Job & Family Servs., 7th Dist. No. 05 JE 48, 2006-Ohio-4382, ¶36-37
(concluding there was no progressive discipline policy in place where the employee
handbook did not describe what disciplinary steps the employer must implement before
terminating an employee.) Thus, the line of progressive discipline cases from our sister
districts cited by Cole are inapplicable.
       {¶22} More importantly, regardless of whether we categorize the leave policy
herein as a progressive discipline policy or not, UPS followed its policy. The policy
                                                                                         -6-


permitted a one-time rehabilitation leave for alcoholism or substance abuse. In 2006,
after Coles' first OVI arrest, he was evaluated by a substance abuse professional and
directed to take alcohol abuse classes, necessitating a month-long leave of absence from
his job. The record demonstrates that the parties intended this to be a rehabilitative
leave. Accordingly, after his second arrest for OVI, and upon recommendation from
another substance abuse professional that Coles attend daily intensive outpatient therapy
for six weeks, Coles was no longer eligible for a rehabilitation leave and was properly
terminated.
       {¶23} Nonetheless, Coles claims that since the first leave was for alcohol
education classes, it should not have counted towards his one-time rehabilitation leave
under the CBA. He points to another CBA provision to support his argument that a
distinction must be made between a leave for alcohol education classes and one for
stronger rehabilitative efforts, such as an intensive outpatient program. Specifically, in
defining the role of a "Substance Abuse Professional," the CBA states: "The SAP is
responsible for performing the following functions * * *2. Referring the employee to an
appropriate education and/or treatment program[.]" Coles claims that because this
provision of the CBA makes a distinction between education and treatment, there must
also be a distinction between leaves for these purposes.
       {¶24} However, the pertinent provision of the CBA provides employees will have a
"one (1) time rehabilitation opportunity for alcohol abuse," meaning the employee will "be
permitted to take a leave of absence for the purpose of undergoing treatment in an
approved program for alcoholism or substance abuse." It does not differentiate between
different types of treatment, e.g., educational classes, intensive outpatient, inpatient, etc.
Accordingly, Coles' argument that UPS failed to follow its mandatory discipline policy is
meritless.
       {¶25} Second, Coles asserts that the rehabilitation agreement he signed following
his first leave (in which he agreed to abstain from further alcohol use), was unenforceable
and violated the terms of the CBA. The agreement, titled "UPS/IBT Alcohol and/or Drug
Rehabilitation Agreement," was developed by UPS and the Union. The determination of
whether this provision is enforceable under the CBA is more appropriately resolved via
                                                                                        -7-


grievance proceedings before the labor-management committee.                 "The labor-
management committee's focus is whether contractual rights under the collective
bargaining agreement have been breached, and its decision is binding upon the parties
for purposes of the collective bargaining agreement. In contrast, the function of ODJFS is
to determine whether unemployment compensation benefits should be granted under
R.C. Chapter 4141, not whether a contract has been breached." Anderson v. Interface
Electric, Inc., 10th Dist. No. 03AP-354, 2003-Ohio-7031, ¶22, citing Wilson v. Matlock,
Inc., 141 Ohio App.3d 95, 101, 750 N.E.2d 170 (2000).
       {¶26} Even if the agreement was unenforceable with regard to Coles' promise to
abstain from alcohol; it still demonstrates Coles was aware that he was taking a
rehabilitative leave following his first OVI arrest. UPS manager Stacey Crowley testified
that when Coles took his first leave and signed that agreement he demonstrated his
knowledge that he would be using his rehabilitative leave. Crowley testified: "[t]hat was
his form of rehabilitation. He understood that when he signed the form." Despite that
knowledge, Coles was again arrested for OVI.           As the Director asserts, Coles
unreasonably disregarded the employer's best interests in continuing to abuse alcohol
and being arrested a second time for OVI. Accordingly, the Review Commission correctly
determined that Coles was discharged with just cause.
       {¶27} In sum, Coles' sole assignment of error is meritless. The Review
Commission's decision was not unlawful, unreasonable, or against the manifest weight of
the evidence; UPS followed the disciplinary procedure in the CBA and Coles was
discharged with just cause. Accordingly, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.
