[Cite as Abel v. ADP/UC Express, 193 Ohio App.3d 247, 2011-Ohio-1649.]



                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

ABEL ET AL.,                                        )
                                                    )
        APPELLEES,                                  )
                                                    )
v.                                                  )           CASE NO. 10-CO-11
                                                    )
ADP/UC EXPRESS AS AMERICA, INC.,                    )                    OPINION
ET AL.,                                             )
                                                    )
        APPELLANTS.                                 )



CHARACTER OF PROCEEDINGS:                           Civil Appeal from Court of Common Pleas
                                                    of Columbiana County, Ohio
                                                    Case No. 09CV659


JUDGMENT:                                           Affirmed


APPEARANCES:

Todd M. Smith, for appellees.

Gust Callas, for appellants.


JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                         Dated: March 23, 2011
        DONOFRIO, Judge.
                                                                                      -2-


      {¶ 1} Defendant-appellant, American Standard Brands, Inc., appeals from a

Columbiana County Common Pleas Court judgment that awarded plaintiffs-appellees,

Frank Abel et al., unemployment-compensation benefits.           The court’s judgment

reversed the prior decisions of the hearing officer and the Unemployment

Compensation Review Commission.

      {¶ 2} American Standard (“the company”) manufactures bathroom fixtures, tubs,

and sinks at its plant in Salem, Ohio.     Appellees in this case are a group of 245

employees of American Standard and members of the United Steelworkers of America,

Local 1538 (“the employees”). This case deals with the collective-bargaining agreement

(“CBA”) that expired on September 30, 2008, the negotiations for a new CBA, and the

work stoppage that occurred from October 17 through November 22, 2008.

      {¶ 3} The employees filed for unemployment-compensation benefits alleging

that they were unemployed due to a lockout. A hearing was held on November 10,

2008. The hearing officer made the following findings of fact.

      {¶ 4} The parties attended negotiation sessions from September 11 through

September 30 and also met on October 13 and 17. They agreed to two extensions of

the expired CBA through October 15, 2008. On that day, the company implemented its

last, best, and final offer based on its assertion that negotiations had reached impasse.

The union responded with a 48-hour strike notice and asserted that there was no

impasse. The employees worked under the implemented terms on October 16 and 17

and stopped working at 1:00 p.m. on October 17. At the time of the hearing, the work

stoppage continued.
                                                                                       -3-


      {¶ 5} The company had been operating at a loss since 2006. It was formerly a

much larger international corporation with over $11 billion in annual sales. But in 2007,

the American Standard Plumbing International portion of the corporation was sold to

Bain Capital, a private equity firm. Less than a month later, another private equity firm,

Sun Capital, purchased a controlling interest of the American Standard Plumbing

Americas portion from Bain. American Standard Plumbing Americas portion includes

the Salem plant at issue. The American Standard Plumbing Americas is not profitable.

The unaudited financial information showed an $88.8 million loss in 2007.            This

information also showed an approximate loss of $5.4 million for the Salem plant through

July 2008. Consequently, Sun Capital stated that each location that is part of American

Standard Plumbing Americas must stand alone and operate at a profit in order to be a

sustainable business.

      {¶ 6} In July 2008, the company made a presentation to the union, along with

written documentation, about its financial status.      A profit-improvement plan was

prepared by the company and given to the union. This plan presumed a ten-percent

wage-concession package.       The last, best, and final offer made by the company

included a five-percent wage concession package that reduced the average wage from

$17.90/hour to $17.00/hour and the wage-plus-benefits rate from $27.91/hour to $25.50

to $26.00/hour.

      {¶ 7} The hearing officer found that the work stoppage was not a lockout, and

therefore, the employees were not entitled to collect unemployment benefits. He found

that the company was the party that had changed the status quo when it determined to
                                                                                         -4-


not allow the employees to work under the terms of the expired CBA. He further found,

however, that the company had a compelling reason to implement the last, best, and

final offer, given the uncontroverted testimony regarding the company’s financial

position.

       {¶ 8} The employees filed an appeal with the review commission on December

15, 2008. In the meantime, the hearing officer issued an entry taking administrative

notice that the employees returned to work the week of November 23, 2008. Therefore,

he concluded that the work stoppage ended on November 22, 2008.                The review

commission disallowed the employees’ appeal by decision dated May 20, 2009.

       {¶ 9} The employees filed an appeal in the trial court on June 18, 2009.

       {¶ 10} The trial court determined that the hearing officer’s decision was unlawful.

It determined that only one test, set out in Bays v. Shenango Co. (1990), 53 Ohio St.3d

132, applied in determining whether the work stoppage constituted a “labor dispute” or a

“lockout.” The trial court found that the hearing officer applied the wrong test, set out in

Zanesville Rapid Transit, Inc. v. Bailey (1958), 168 Ohio St. 351, when determining

which party deviated from the status quo. The trial court determined that because the

company refused work under the preexisting CBA, the work stoppage was a lockout

and not a labor dispute.     Accordingly, it found that the employees were entitled to

unemployment benefits for the term of the lockout.

       {¶ 11} The company filed a timely notice of appeal from the trial court’s judgment

on March 3, 2010. It now raises four assignments of error. The same standard of

review applies to all assignments of error.
                                                                                         -5-


       {¶ 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} A party unsatisfied with the trial court's decision may appeal to the court of

appeals.   The appellate court, like the trial court, is generally limited to reviewing

whether the decision is supported by evidence in the record.           Tzangas, Plakas &

Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694, 696, citing Irvine v.

Unemp. Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 18.

       {¶ 14} With this standard of review in mind, we turn now to the company’s

assignments of error, the first of which states:

       {¶ 15} “The trial court erred in finding that Bays is the sole test for determining

whether a lockout has occurred for purposes of unemployment compensation.”

       {¶ 16} R.C. 4141.29(D)(1)(a) provides:

       {¶ 17} “(D) Notwithstanding division (A) of this section, no individual may serve a

waiting period or be paid benefits under the following conditions:

       {¶ 18} “(1) For any week with respect to which the director finds that:
                                                                                        -6-


       {¶ 19} “(a) The individual's unemployment was due to a labor dispute other than

a lockout * * *.”

       {¶ 20} Therefore, an employee who is unemployed due to a labor dispute is

entitled to unemployment compensation only if the labor dispute is a “lockout.”          A

“lockout” is “a cessation of the furnishing of work to employees or a withholding of work

from them in an effort to get for the employer more desirable terms.” Zanesville, 168

Ohio St. at 354, 7 O.O.2d 119, 155 N.E.2d 202.

       {¶ 21} The company argues that the trial court erred by concluding that the

“status quo” test set out in Bays, 53 Ohio St.3d 132, is the “sole test” for determining

whether a lockout has occurred. The company urges us to apply Zanesville and Oriti v.

Ohio Bur. of Emp. Servs. (1983), 7 Ohio App.3d 311, in conjunction with Bays to

determine whether a lockout occurred. It asserts that the trial court misapplied this

court’s decision in Abate v. Wheeling-Pittsburgh Steel Corp. (1998), 126 Ohio App.3d

742, because we never stated that the Bays test was the sole test for determining

whether a lockout had occurred. The company further points out that this court in Agich

v. Ohio Bur. Emp. Servs. (June 8, 1993), 7th Dist. No. 92-C-41, applied both Bays and

Zanesville, thus contradicting the notion that the Bays test is the sole test.

       {¶ 22} The hearing officer cited three cases in its decision: Zanesville, Oriti, and

Bays. He then concluded that Zanesville and Oriti best applied to the facts of this case.

He further noted that the Ohio Supreme Court discussed them both in Bays, and neither

had been overruled.      The trial court found that the hearing officer’s reliance on

Zanesville and Oriti was unlawful because it should have applied Bays, which it found
                                                                                        -7-


set out the status quo test as the sole test to be used to determine whether a work

stoppage is a lockout. Thus, we must carefully review each of these cases along with

the pertinent cases from our district to determine the appropriate test in this case.

       {¶ 23} In Zanesville, 168 Ohio St. 351, the Ohio Supreme Court was faced with

the sole question of whether a labor dispute other than a lockout had occurred. Quoting

Almada v. Admr., Unemp. Comp. Act (Conn.1951), 77 A.2d 765, 771, the court first

stated:

       {¶ 24} “ ‘The imposition by the employer of changes in working conditions or

wages, even though they deprive the employees of some advantage they already

possess, does not necessarily constitute a lockout. Changes in the terms of

employment might still be such that under all the circumstances the employees would

be expected in reason to accept them rather than quit work. To constitute a lockout * * *

the conditions of further employment announced by the employer must be such that the

employees could not reasonably be expected to accept them and they must manifest a

purpose on the part of the employer to coerce his employees into accepting them or

some other terms. * * *

       {¶ 25} “‘The point is that, in order to constitute a lockout, the conduct of the

employer in laying down terms must lead to unemployment inevitably in the sense that

the employees could not reasonably be expected to accept the terms and, in reason,

there was no alternative for them but to leave their work. The real test whether the

imposition by the employer of changed conditions of employment is a withholding of

work so as to constitute a lockout lies in the question whether the conditions imposed
                                                                                         -8-


are such that his employees could not be expected to continue work under them and, in

reason, they had no other course open to them but to leave their employment.’ ”

Zanesville, 168 Ohio St. at 354-355.

      {¶ 26} The court found that in light of the facts that (1) for at least two-and-a-half

months before the expiration of the contract, the union was aware of the straitened

circumstances of the company and of its intention not to continue the contract and (2)

Zanesville was a public utility dependent on the action of city council in negotiating a

franchise in the city, the ten-percent wage cut announced by the company was not

unreasonable and did not manifest a purpose on the part of the company to coerce the

employees into accepting it. Id. at 355-356.

      {¶ 27} In Oriti, 7 Ohio App.3d 311, the employer refused to extend the terms of

the collective-bargaining agreement while negotiations continued. The Eighth District

Court of Appeals determined that the “status quo” principle should be applied in

determining whether a work stoppage is a lockout. Id. at 314. It stated that the status

quo principle was consistent with Zanesville, in which it was demonstrated that the

maintenance of the status quo would result in serious financial hardship to the

employer, or in other words, would have been unreasonable. Id. The court continued:

      {¶ 28} “[W]here employees offer to continue working under the terms of a pre-

existing collective bargaining agreement pending final settlement of a labor dispute, the

failure of the employer to accept such an offer constitutes a lockout unless it is

demonstrated that the employer has a compelling reason for failing to so agree such

that the extension of the contract would be unreasonable under the circumstances.” Id.
                                                                                        -9-


      {¶ 29} In reaching this holding, the Eighth District also relied in large part on a

Pennsylvania Supreme Court decision stating:

      {¶ 30} “ ‘In the very delicate and sensitive negotiations which are involved in the

development of a new collective bargaining agreement to replace one that is nearing its

expiration, all parties must be sincere in their desire to maintain the continued operation

of the employer's enterprise. The law contemplates that collective bargaining will be

conducted in good faith, with a sincere purpose to find a basis for agreement. Neither

an adamant attitude of “no contract, no work” on the part of the employees, nor an

ultimatum laid down by the employer that work will be available only on his (employer's)

terms, are serious manifestations of a desire to continue the operation of the enterprise.

While either or both of these positions may legitimately be taken by the parties during

the bargaining negotiations prior to the expiration of the existing contract, when the

contract has in fact expired and a new agreement has not yet been negotiated, the sole

test under * * * the Unemployment Compensation Law, * * * of whether the work

stoppage is the responsibility of the employer or the employees is reduced to the

following: Have the employees offered to continue working for a reasonable time under

the pre-existing terms and conditions of employment so as to avert a work stoppage

pending the final settlement of the contract negotiations; and has the employer agreed

to permit work to continue for a reasonable time under the pre-existing terms and

conditions of employment pending further negotiations? If the employer refuses to so

extend the expiring contract and maintain the status quo, then the resulting work

stoppage    constitutes   a   “lockout”   and   the   disqualification   of   unemployment
                                                                                           - 10 -


compensation benefits in the case of a “stoppage of work because of a labor dispute”

does not apply.’ ” Id. at 312-313, quoting Vrotney Unemp. Comp. Case (1960), 400 Pa.

440, 443-445.

       {¶ 31} Like the other cases, in Bays, the central dispute was whether a work

stoppage was due to a lockout or a strike. The Ohio Supreme Court first traced the

history of the status quo test back to Baker v. Powhatan Mining Co. (1946), 146 Ohio

St. 600, in which the court relied on Sandoval v. Indus. Comm. (1942), 110 Colo. 108, in

determining whether employees had engaged in a strike. Bays, 53 Ohio St.3d at 134.

Sandoval had looked at which party, the employer or the union, had changed the status

quo. Id. Bays stated that the status quo test was fully developed in Vrotney Unemp.

400 Pa. 440. The court quoted the same language from Vrotney that Oriti relied on. Id.

at 134-135. Bays next pointed out that the Eighth District Court of Appeals adopted this

test in Oriti. Id. at 135. It also quoted the portion of Oriti’s holding using the “compelling

reason” language. Id. at 135.

       {¶ 32} Bays analyzed the facts of its case. It found that the employer had refused

to allow work to continue for a reasonable time under the terms of the existing contract

while negotiations continued. Id. In the same paragraph the court, citing Oriti, stated:

“We also note that the record contains no evidence that Shenango [the employer] had a

compelling reason to refuse to maintain the status quo.” Id. The court then continued

to find that the union had offered to maintain the status quo. Id. at 136. Consequently,

the court reversed the judgment of the court of appeals and reinstated the trial court’s

judgment that had allowed unemployment benefits for the employees.
                                                                                           - 11 -


       {¶ 33} This court applied the status quo test in Abate, 126 Ohio App.3d 742. We

first quoted the Zanesville test. Id. at 750. Next, we quoted Bays’ quotation of the

Vrotney test, starting with the statement, “[T]he sole test * * * is reduced to the following”

and going on to set out the status quo test. Id. We did not mention the compelling-

reason exception.     However, there was no reason to reach the compelling-reason

exception. The issue in Abate was whether the trial court had misapplied the status quo

test when it considered whether the employer had actually offered to extend the existing

contract. Id. at 749. The issue before us did not involve whether to apply Zanesville,

Bays, or both.

       {¶ 34} In Agich, 1993 WL 205003, which predated Abate, we stated the Bays test

as follows: “[A]n employer alters the status quo when it does not offer to continue or

agree to a continuation of existing work conditions unless the employer has a

compelling reason for failing to so agree.” We found that the employees were the first

ones to alter the status quo. We relied on both Bays and Zanesville.

       {¶ 35} In neither case did we directly address whether Bays was the sole test.

       {¶ 36} The appellate districts are divided on the question of how to apply the

Bays and Zanesville tests. The districts that have directly addressed the issue have

adopted one of two approaches.

       {¶ 37} The First, Second, Sixth, Eighth, Tenth, and Eleventh Districts have

determined that Zanesville and Bays present two alternative tests, depending on the

facts of the case. They have held that when the parties have ceased negotiating and

reached impasse, the Zanesville “reasonableness” test applies. But when negotiations
                                                                                        - 12 -


are ongoing between the parties, the Bays status quo test applies. See Aliff v. Ohio

Bur. Empl. Serv. (Mar. 9, 2001), 1st Dist. No. C-000238; Johnson v. Ohio Bur. Emp.

Serv. (1993), 82 Ohio App.3d 293, 298-299; Baker v. Ohio Unemp. Comp. Rev. Comm.,

6th Dist. No. L-01-1503, 2002-Ohio-3154; Aliff v. Unemp. Comp. Rev. Comm., 8th Dist.

No. 80767, 2003-Ohio-1155, at ¶ 17; Aliff v. Ohio Bur. of Emp. Serv., 9th Dist. No.

20828, 2002-Ohio-2642, at ¶ 14; Aliff v. Dir., Ohio Dept. of Job & Family Servs. (Sept.

25, 2001), 10th Dist. No. 01AP-18; In re Claim of Tietz v. Ohio Dept. Job & Family

Servs., 11th Dist. No. 2004-T-0132, 2005-Ohio-4767, at ¶ 18-21.

      {¶ 38} In contrast, the Third and Fifth Districts have held that Bays and Zanesville

must be applied together. The Fifth District Court of appeals held:

      {¶ 39} “Although the Bays court cited Zanesville, it did not overrule it, nor did it

explain when to apply Bays and when to apply Zanesville. We must review both cases

to determine how they can be construed together. At the outset, we find they both

present a reasonableness standard. Bays deals with situations where the status quo

has been changed, and directs us to determine whether the party who changed the

status quo acted reasonably. If the party who changed the status quo is the employer,

the Bays test is employed to review the employer's actions. If the court finds the

employer acted reasonably in offering its best and final offer, then the analysis shifts to

an examination of whether the employees' response to the offer was reasonable, which

is the Zanesville analysis. In other words, the Supreme Court has provided us with a

framework which will analyze both parties' actions in turn. It is only logical to place the

burden of proof on the actor in each instance, to show its actions were reasonable. The
                                                                                      - 13 -


first step must be to determine which party altered the status quo * * *. Pursuant to

Bays, the parties may change the status quo only after allowing it to exist for a

‘reasonable time.’ ” Albaugh v. Unemp. Comp. Rev. Comm. (May 11, 2001), 5th Dist.

No. 00CA024.

      {¶ 40} And the Third District reasoned:

      {¶ 41} “[W]e find that both Bays and Zanesville define lockout generally as ‘a

cessation of the furnishing of work to employees or a withholding of work from them in

an effort to get for the employer more desirable terms.’ Bays supplements this test with

the status quo test which we accept as the general rule. However, Bays provides an

exception which allows an employer to deviate from the status quo for a compelling

reason. We find that once it has been established that the employer deviated from the

status quo for a compelling reason, Zanesville confines the application of this exception

to circumstances where the employees would be expected in reason to accept [the

terms] rather than quit work. See, generally, Albaugh, supra. Consequently, even if the

employer has a compelling reason to deviate from the status quo, if that change is so

drastic that it would be reasonably expected that the employee would quit rather than

accept the change, then the employer's deviation from the status quo constitutes a

lockout.” Minster Machine Co. v. Albers, 3d Dist. No. 2-03-05, 2003-Ohio-4355, at ¶ 15.

      {¶ 42} The approach taken by the majority of our sister districts is more

persuasive. It is a much simpler and more direct approach that leaves little room for

confusion.   The only preliminary question that must be determined is whether

negotiations are ongoing or the parties have reached impasse. Once this determination
                                                                                           - 14 -


is made, the test to apply is clear. Furthermore, had the Supreme Court intended to

combine both tests into one, it would seem that it would have made this clear in Bays.

Instead, the court set out the status quo test as the test to be used while negotiations

are ongoing. This left the Zanesville test to be applied when negotiations have ceased.

        {¶ 43} Based on the above, the trial court did not err in stating that the Bays

status quo test is the sole test for determining whether a lockout has occurred in this

case.

        {¶ 44} Turning to the facts of the present case, the hearing officer found that

impasse had not been reached, even though the company had given its last, best, and

final offer because the employees were willing to maintain the status quo and keep

negotiating. Neither party has disputed this factual finding. Because the parties had not

reached impasse, the Bays status quo test is the applicable test in this case.

        {¶ 45} Accordingly, the company’s first assignment of error is without merit.

        {¶ 46} The company’s second assignment of error states:

        {¶ 47} “The trial court erred in failing to apply the ‘compelling reason’ exception to

the Bays status quo test.”

        {¶ 48} Here, the company argues that if Bays is the sole test in this case, the trial

court still erred in failing to apply the “compelling reason” exception to the Bays status

quo test. It contends that both the Ohio Supreme Court (in Bays) and this court (in

Agich), along with several other appellate districts, recognize an exception to the status

quo test when a compelling reason exists for refusing to maintain the status quo.
                                                                                       - 15 -


      {¶ 49} The company points out that the hearing officer found that it did have a

compelling reason for failing to maintain the status quo, that being that the company

was facing a dire economic situation. It points out that the trial court did not discredit

this finding of fact. It further asserts that the trial court failed to even consider this

exception or whether it applied in this case despite arguments by both sides.

      {¶ 50} A compelling-reason exception does exist to the Bays status quo test.

First, as discussed above, Bays specifically quoted the compelling-reason language

from Oriti. Bays, 53 Ohio St.3d at 135. It then made a specific finding that the employer

in that case had no compelling reason to deviate from the status quo. Id. Second, this

court specifically stated that the Bays status quo test included the compelling-reason

exception.   Agich, 1993 WL 205003.       Our decision is further supported by Minster

Machine, 3d Dist. No. 2-03-05, at ¶ 11, and Baker v. Ohio Unemp. Comp. Rev. Comm.,

6th Dist. No. L-01-1503, 2002-Ohio-3154, at ¶ 14, which both found that the compelling-

reason exception was part of the Bays test.         Thus, the trial court should have

considered the compelling-reason exception in this case.

      {¶ 51} But the hearing officer’s decision finding the compelling-reason exception

applicable was not supported by competent, credible evidence. In order to qualify for

the compelling-reason exception, the company had to establish that the parties could

not have continued under the terms of the expired CBA until a new one had been

negotiated. Oriti, 7 Ohio App.3d at 315. The company further had to show that it was in

such straitened financial circumstances that it would have been unreasonable to extend

the expired CBA. Id. Here, the company did not meet this burden.
                                                                                       - 16 -


      {¶ 52} The company did offer evidence as to its financial problems. For instance,

the evidence demonstrated that in July 2008, the company made a presentation to the

union, including supporting documentation, about the poor financial status of the Salem

Plant. And the unaudited financial information showed that the company had been

operating at loss for the last several years, including a $5.4 million loss in 2008. The

company also presented evidence that since the acquisition by Sun Capital, the Salem

Plant was required to stand alone and make a profit. Consequently, and at the request

of the union, the company prepared a Salem Plant Gross Improvement Plan document.

This document reflected an example of how the company planned to achieve the 25

percent gross profit required by Sun Capital. It included 2.4 percent to come from

contract concessions. The plan included an expected ten-percent wage concession.

      {¶ 53} The hearing officer found that the above testimony was credible and

uncontroverted. However, this evidence fails to rise to the level of “such straitened

financial circumstances that it would have been unreasonable to extend” the expired

CBA. At the time the company made its last, best, and final offer, the parties had been

negotiating for only a little over a month, and the contract had been expired for only two

weeks. There was no evidence that if the company continued to operate under the

terms of the expired CBA for a few additional weeks, it would have resulted in

catastrophic financial consequences. Simply because the company was operating at a

loss and needed to increase its profits does not mean that it could not have continued

under the expired CBA for at least a short period of time while negotiations continued.
                                                                                       - 17 -


      {¶ 54} Accordingly, the compelling-reason exception does not apply here. The

company’s second assignment of error is without merit.

      {¶ 55} The company’s third and fourth assignments of error share a common

basis. Therefore, we will address them together. They state:

      {¶ 56} “The trial court erred in modifying the decision of the hearing officer and

review commission when that decision was not unlawful, unreasonable, or against the

manifest weight of the evidence.

      {¶ 57} “The trial court erred in modifying the decision of the hearing officer and

review commission because even if the hearing officer and review commission erred,

such error was harmless.”

      {¶ 58} The trial court found that the hearing officer incorrectly applied the

Zanesville reasonableness test rather than strictly applying the Bays case and that

doing so was unlawful.

      {¶ 59} The company argues that the trial court’s finding of unlawfulness was

incorrect. First, it again asserts that neither this court nor the Ohio Supreme Court has

held that Bays is the sole test to be applied. Second, it asserts that the hearing officer

applied the status quo test, just like the trial court, choosing instead to cite Oriti but

applying the exact same test. Thus, it contends that any error here was harmless.

Finally, the company urges that the hearing officer did not err in applying Zanesville and

Oriti because Bays cites both of these cases with approval.

      {¶ 60} As discussed in detail above, the Bays status quo test is the sole test to

be applied in this case, given the hearing officer’s finding that the parties had not
                                                                                       - 18 -


reached impasse. The hearing officer, however, determined that Zanesville and Oriti

best applied to the facts in this case and did not apply Bays.         The hearing officer

determined that under Zanesville, there was no lockout because the company would

have allowed the employees to continue working under the terms of its last, best, and

final offer, which was reasonable under the circumstances.         And applying Oriti, the

hearing officer found that the company had a compelling reason to implement its last,

best, and final offer. While the company is correct that Bays relied in part on Oriti, in

setting forth the status quo test, the hearing officer used only Oriti to find that the

company had a compelling reason to implement its last, best, and final offer and it did

so after finding that under the Zanesville reasonableness test, there was no lockout.

Thus, we agree with the trial court that the hearing officer applied the wrong test.

       {¶ 61} But our analysis does not end here. The hearing officer’s decision was

also unreasonable because it found that the compelling-reason exception was

applicable under the facts of this case.       As we discussed in appellant’s second

assignment of error, the evidence presented did not demonstrate that the company

could not have continued under the terms of the expired CBA until the parties

negotiated a new collective-bargaining agreement. The company’s evidence regarding

its financial position did not show that it would have been unreasonable to extend the

expired CBA while negotiations were ongoing. The parties had been negotiating for

only a little over a month, and the contract had been expired for only two weeks. A few

additional weeks of negotiating would not have resulted in disastrous consequences.
                                                                                       - 19 -


Consequently, the hearing officer should not have applied the compelling-reason

exception in this case.

       {¶ 62} Because the hearing officer applied the incorrect test and because he also

found that the facts of this case met the compelling-reason exception, we find the

hearing officer’s decision to be unlawful and unreasonable.

       {¶ 63} Accordingly, the company’s third and fourth assignments of error are

without merit.

       {¶ 64} For the reasons stated above, the trial court’s judgment is hereby affirmed.
                                                                      Judgment affirmed.
       WAITE, P.J., and VUKOVICH, .J., concur.
