[Cite as Bonanno v. Ohio Dept. of Job & Family Servs., 2012-Ohio-5167.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                    :      JUDGES:
WILLIAM BONANNO                                     :      William B. Hoffman, P.J.
                                                    :      Sheila G. Farmer, J.
                        Plaintiff-Appellant         :      Julie A. Edwards, J.
                                                    :
-vs-                                                :      Case No. 2012 AP 02 0011
                                                    :
                                                    :
OHIO DEPARTMENT OF JOB AND                          :      OPINION
FAMILY SERVICES, et al.,

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                     Civil Appeal from Tuscarawas County
                                                             Court of Common Pleas Case No.
                                                             2011 AA 09 0991

JUDGMENT:                                                    Affirmed

DATE OF JUDGMENT ENTRY:                                      November 2, 2012

APPEARANCES:

For Plaintiff-Appellant                                      For Defendants-Appellees

MICHAEL F. HARRINGTON                                        MICHAEL DEWINE
Southeastern Ohio Legal Services                             Ohio Attorney General
322 West High Avenue
New Philadelphia, Ohio 44663                                 BY: SUSAN M. SHEFFIELD
                                                             Associate Assistant Attorney General
                                                             Health and Human Services Section
                                                             20 West Federal Street, 3rd Floor
                                                             Youngstown, Ohio 44503
[Cite as Bonanno v. Ohio Dept. of Job & Family Servs., 2012-Ohio-5167.]


Edwards, J.

        {¶1}    Plaintiff-appellant, William Bonanno, appeals from the January 13, 2012,

Judgment Entry of the Tuscarawas County Court of Common Pleas affirming the

decision of the Unemployment Compensation Review Commission denying him

unemployment compensation benefits.

                               STATEMENT OF THE FACTS AND CASE

        {¶2}    Appellant William Bonanno was hired by Stocker Sand and Gravel

Company in March of 2003 as a laborer. Appellant operated machinery that was used

to move, shake and sort gravel.

        {¶3}    Appellant typically worked from 7:00 or 7:30 a.m. until 4:00 or 5:00 p.m.

When he arrived at work, appellant usually started up the machinery for the day and

would make sure that there were no problems with the equipment. During the first two

days of the week of August 12, 2010, appellant was working the afternoon shift and the

machinery was already running when he arrived at work. Appellant merely took over the

controls from another machine operator.

        {¶4}    On August 12, 2010, when he arrived at work, the machinery was not

running because there was a problem with the dredge. Appellant discovered a piece of

rebar that was stuck in the rock box of a conveyor belt. Appellant then climbed up on to

the rock box, which was approximately 50 feet in the air, via a catwalk onto the

conveyor belt and into the rock box and removed the rebar. Prior to doing so, appellant

forgot to lock out and tag out the machine. Appellant’s employer has a written policy

that the power to a machine must be turned off and a red sign posted notifying other

employees that work is being performed on the machine.                    The employee manual
Tuscarawas County App. Case No. 2012 AP 02 0011                                            3


provided to appellant in February of 2003 states, in relevant part, that “[i]n all instances,

where possible, power must be cut off and proper lock-out/tag-out procedures must be

performed before service or repair work is begun.” Appellant was aware of such policy.

After appellant’s employer observed that appellant did not lock out and tag out the

equipment before working on the conveyor, appellant was discharged for failing to

follow company safety rules by working on equipment with the power on.

       {¶5}   Appellant applied for unemployment compensation benefits and was

denied the same on the basis that he had been discharged with just cause. Appellant

then appealed and on redetermination the decision was affirmed.

       {¶6}   Subsequently, a hearing before an Unemployment Compensation Hearing

Officer was held on May 4, 2011. Pursuant to a Decision mailed on May 6, 2011, the

Hearing Officer found that appellant was discharged for just cause and that he was not

eligible for unemployment compensation benefits. Appellant then appealed to the

Unemployment Compensation Review Commission which issued a Decision disallowing

his request for review.

       {¶7}   On September 22, 2011, appellant filed an appeal with the Tuscarawas

County Court of Common Pleas. Both parties filed briefs. As memorialized in a

Judgment Entry filed on January 13, 2012, the trial court affirmed the decision of the

Unemployment Compensation Review Commission.

       {¶8}   Appellant now raises the following assignments of error on appeal:

       {¶9}   “I.   THE    TRIAL    COURT      ERRED       BY    DEFERRING        TO    THE

UNEMPLOYMENT              COMPENSATION          REVIEW          COMMISSION’S        (UCRC)

APPLICATION OF LAW TO THE UNDISPUTED FACTS IN THE CASE.
Tuscarawas County App. Case No. 2012 AP 02 0011                                          4


      {¶10} “II. THE TRIAL COURT ERRED BY NOT CONSIDERING ALL PRONGS

OF R.C. 4141.282(H) WHICH ALLOWS FOR A DECISION TO BE REVERSED NOT

ONLY WHEN IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BUT

ALSO IF IT WAS UNLAWFUL OR UNREASONABLE.

      {¶11} “II. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS JUST

CAUSE FOR TERMINATION OF MR. BONANNO’S EMPLOYMENT AND THE DENIAL

OF HIS UNEMPLOYMENT BENEFITS.”

                                             I, II, III

      {¶12} Appellant, in his three assignments of error, argues that the trial court

erred in affirming the decision of the Unemployment Compensation Review

Commission’s finding that there was just cause for appellant’s discharge and holding

that appellant, therefore, was not entitled to unemployment compensation benefits. We

disagree.

      {¶13} An appeal of a decision rendered by the Review Commission is governed

by R.C. 4141.282(H), which provides, in pertinent part: “ * * * If the court finds that the

decision is unlawful, unreasonable, or against the manifest weight of the evidence, it

shall reverse, vacate, or modify the decision, or remand the matter to the commission.

Otherwise, such court shall affirm the decision of the commission.”

      {¶14} An appellate court's standard of review in unemployment compensation

cases is limited. An appellate court may reverse a board's decision only if the decision is

unlawful, unreasonable, or against the manifest weight of the evidence. See, Tzangas,

Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73 Ohio St.3d

694, 696, 1995–Ohio–206, 653 N.E.2d 1207, citing Irvine v. Unemp. Comp. Bd. Of
Tuscarawas County App. Case No. 2012 AP 02 0011                                           5

Review, 19 Ohio St.3d 15, 17–18, 482 N.E.2d 587 (1985). An appellate court may not

make factual findings or determine the credibility of the witnesses, but rather, is required

to make a determination as to whether the board's decision is supported by evidence on

the record. Id. The hearing officer is in the best position to judge the credibility of the

witnesses as the fact finder. Shaffer–Goggin v. Unemployment Compensation Review

Commission, 5th Dist. No. 03–CA–2, 2003–Ohio–6907, citing, Hall v. American Brake

Shoe Co., 13 Ohio St.2d 11, 233 N.E.2d 582 (1968); Brown–Brockmeyer Co. v. Roach,

148 Ohio St. 511, 76 N.E.2d 79 (1947).

        {¶15} A reviewing court is not permitted to make factual findings, determine the

credibility of witnesses, or substitute its judgment for that of the commission; where the

commission might reasonably decide either way, the courts have no authority to upset

the commission's decision. Irvine, supra at 17–18. “‘Every reasonable presumption must

be made in favor of the [decision] and the findings of facts [of the Review

Commission].’”     Ro–Mai Industries, Inc. v. Weinberg, 176 Ohio App.3d 151, 2008–

Ohio–301, 891 N.E.2d 348, ¶ 7 (9th Dist.), quoting Karches v. Cincinnati, 38 Ohio St.3d

12, 19, 526 N.E.2d 1350 (1988).

        {¶16} In order to qualify for unemployment compensation benefits, a claimant

must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). That section provides:

        {¶17} “ * * *

        {¶18} “(D)* * * [N]o individual may * * * be paid benefits * * *:

        {¶19} “(2) For the duration of the individual's unemployment if the director finds

that:
Tuscarawas County App. Case No. 2012 AP 02 0011                                              6


       {¶20} “(a) The individual quit his work without just cause or has been discharged

for just cause in connection with the individual's work, * * *.”

       {¶21} 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, supra at 17; Tzangas, supra at 697. The determination of whether just cause

exists for an employee's dismissal under R.C. 4141.29 is based upon whether there

was some fault on the part of the employee that led to the dismissal. Tzangas, supra at

paragraph two of the syllabus. Furthermore, where an employee demonstrates

“‘unreasonable disregard for [the] employer's best interests,’ just cause for the

employee's termination is said to exist.” Kiikka v. Ohio Bur. of Emp. Servs. (1985), 21

Ohio App.3d 168, 169, 486 N.E.2d 1233, (8th Dist. 1985); quoting Stephens v. Bd. of

Rev., 8th Dist. No. 41369, 1980 WL 355009. See, also, Binger v. Whirlpool Corp., 110

Ohio App.3d 583, 590, 674 N.E.2d 1232 (6th Dist. 1996). “Just cause” does not typically

require intentional action and the determination of just cause depends upon the “unique

factual considerations of the particular case” and is therefore an issue for the trier of

fact. Irvine, supra at 17.

       {¶22} In the case sub judice, the Unemployment Compensation Review

Commission found, and we concur, that appellant was discharged with just cause for

failing to follow his employee’s safety rules. There is no dispute that appellant did not

lock out and tag out the machine as required by his employer’s policy. While appellant

may not have intended to violate the safety rules and may have forgotten to follow the

rules, as is stated above, just cause does not require intentional action.
Tuscarawas County App. Case No. 2012 AP 02 0011                                          7


       {¶23} At the May 4, 2011 hearing, Bryan Stocker, Vice President of Stocker

Sand and Gravel Company, testified as follows when asked about the reason for the

policy that a machine be locked off and tagged: “Because it, if, if he didn’t follow it

there’s a good chance he’s either going to get hurt or killed, one of the two. “ Transcript

at 9. He further testified that while the machine was not actually running, “it was ready,

to run, one button and it would’ve been running. Anybody could’ve come in and push

(sic) the start button and it would’ve turned on.” Transcript at 9. The Hearing Officer, in

her Decision, indicated that she found such testimony credible and that although

appellant testified that he “simply forgot to follow the correct steps prior to beginning

work on the machine, claimant’s negligence in that instance was a significant violation

of the employer’s safety procedures.” Appellant, by failing to comply with the rules,

showed an “unreasonable disregard” for his employer’s best interests and subjected his

employer to potential legal liability.

       {¶24} Based on the foregoing, we find that the trial court did not err in affirming

the decision of the Unemployment Compensation Review Commission. The Board's

decision was not unlawful, unreasonable or against the manifest weight of the evidence.
Tuscarawas County App. Case No. 2012 AP 02 0011                                   8


       {¶25} Appellant's three assignments of error are, therefore, overruled.

       {¶26} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                               JUDGES

JAE/d0827
[Cite as Bonanno v. Ohio Dept. of Job & Family Servs., 2012-Ohio-5167.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


WILLIAM BONANNO                                       :
                                                      :
                           Palintiff-Appellant        :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
OHIO DEPARTMENT OF JOB AND                            :
FAMILY SERVICES, et al.,                              :
                                                      :
                     Defendants-Appellees             :       CASE NO. 2012 AP 02 0011




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is affirmed.                     Costs

assessed to appellant.




                                                          _________________________________


                                                          _________________________________


                                                          _________________________________

                                                                          JUDGES
