Opinion
No. 76-188
Decided December 22, 1976.
Unemployment compensation — Eligibility — R.C. 4141.33 — Racetrack employee.
APPEAL from the Court of Appeals for Lucas County.
James N. Young, appellee herein, and a race track employee, filed an application for determination of unemployment benefit rights with the Ohio Bureau of Employment Services on July 31, 1972. The application was denied on August 11, 1972, and, subsequently, on August 22, 1972, the Administrator of the Ohio Bureau of Employment Services, in a Reconsideration Decision, affirmed the disallowance of the claim.
Upon appeal to the board of review, the administrator's decision on reconsideration was affirmed.
In its decision the board of review made the following findings of fact:
"Claimant's base period began August 1, 1971, and ended July 29, 1972. Claimant's base period employment with employers subject to the Ohio Unemployment Compensation Law was as follows:
"`Raceway Park, Inc., from August 2, 1971 through August 7, 1971, and June 2, 1972 through July 22, 1972, which consisted of 9 credit weeks with earnings of $694.00.
"`Toledo Maumee Raceway, Inc., from January 1, 1972 through February 26, 1972, which consisted of 7 credit weeks with earnings of $1,165.50.'"
In denying benefits to appellee, the board of review relied upon a determination of the administrator made by journal entry in 1969, which reads as follows:
"* * * it is determined that the seasonal period for horse racing shall be the thirty-nine (39) calendar weeks beginning with the Sunday of the week in which March 6th occurs each year.
"It is further determined that with respect to individuals hired primarily to perform services during the seasonal period, fifteen (15) credit weeks and earnings of at least $300.00 of base period seasonal employment are required to qualify for a valid application for seasonal benefit rights. Under such valid application, an individual shall be entitled during the season, to seasonal benefits of fifteen (15) times the weekly benefit amount. If there are additional seasonal credit weeks within the base period, additional total benefits payable shall be increased to include one times the weekly benefit amount for each two (2) additional credit weeks of seasonal employment, not to exceed nineteen (19) times the weekly benefit amount."
Applying the facts to the foregoing determination of the administrator, the board reasoned as follows:
"Since the Journal Entry establishes the 39 week period which constituted the season for horse racing in Ohio, any employment outside of the bounds of that season, even with a race track operator, must be considered as nonseasonal employment. Since the horse racing season in 1972 began March 5, 1972 and ended December 2, 1972, the employment which claimant had with Toledo Maumee Raceway, Inc., from January 1, 1972 through February 26, 1972 must be considered as `non-seasonal employment.'
"Claimant's only seasonal employment with a horse race track operator was the 9 weeks he had with Raceway Park, Inc. This is insufficient to meet the minimum requirement of 15 credit weeks of horse racing employment to file a valid application for determination of benefit rights required under the Administrator's Journal Entry of March 18, 1969. In order for claimant to file a valid application for determination of benefit rights under the provisions providing for the combining of seasonal and non-seasonal employment, claimant has to have a minimum of 20 credit weeks of employment during his base period. * * *"
Appellee appealed the decision of the board to the Court of Common Pleas of Lucas County. That court reversed the decision of the board, and its judgment was affirmed by the Court of Appeals.
In its decision and journal entry, the Court of Appeals stated:
"The Supreme Court of Ohio, in Beulah Park Jockey Club v. Garnes (1973), 36 Ohio St.2d 143, found that the departure from the custom of the horse racing industry to operate in regularly recurring periods of 40 weeks or less, by a racetrack located in a specific geographic location around Toledo, did not change the seasonal nature of horse racing. The horse racetrack industry is, therefore, `* * * entitled to the classification of seasonal employment as described in R.C. 4141.33(A).' 36 Ohio St. 2d at 146-47. Appellant, the Administrator for the Ohio Bureau of Employment Services, contends that, since the employment of the claimant with Toledo Maumee Raceway was outside of the customary 40 weeks or less seasonal period for horse racing, it must be considered as non-seasonal employment resulting in the failure of the claimant to meet the fifteen week benefit qualification rquirement for seasonal employees.
"To apply the statute in such a manner as to allow seasonal employees who are employed during the regularly recurring seasonal periods to qualify for benefits and not allow seasonal employees primarily hired to work within the customary period, but who also work in the seasonal industry outside the customary period, to qualify for the limited benefits, is unreasonable and arbitrary. The classification is by industry, not by seasonal periods. As a result of Beulah Park Jockey Club v. Garnes, supra, Toledo Maumee Raceway, Inc., and Raceway Park, Inc., are required to pay only seasonal rates which are lower than rates based on a business classified non-seasonal. No distinction is made by statute between seasonal employers and seasonal employees within a seasonal industry. The only limitation on benefits to seasonal employees found in Sec. 4141.33(A) is that they are `payable only during the longest seasonal periods which the best practice of such industry will reasonably permit.' Employees that work in an industry which has been determined to be seasonal are entitled to benefits based on the number of weeks of employment in the seasonal industry."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Joseph D. Weisberg, for appellee.
Mr. William J. Brown, attorney general, and Mr. Jerry Arthur Jewett, for appellant.
The basis for the denial of appellee's application for unemployment benefits by the board of review was that "* * * any employment outside of the bounds of * * * [the racing season set by the administrator] even with a race track operator, must be considered as non-seasonal employment."
The provisions of R.C. 4141.33 do not permit such a conclusion. R.C. 4141.33 indicates that employers are to be classified as seasonal or nonseasonal. Appellee was an employee of employers classified as seasonal under the statute, and a portion of his employment occurred at a time other than that established by the administrator as the seasonal period for such employers. Inasmuch as appellee's employment was with a seasonal employer, his employment could not be "nonseasonal" as that term is used in R.C. 4141.33, even though part of the employment occurred outside the established seasonal period.
The board, when it "considered as non-seasonal employment" appellee's employment outside the bounds of the seasonal period, created a nonseasonal classification not provided for in the statute. Consequently, the board's decision was not in accordance with law.
The foregoing conclusion is not in conflict with the court's holding in Beulah Park Jockey Club v. Garnes (1973), 36 Ohio St.2d 143, 146, 304 N.E.2d 901, 903, that "* * * the horse racetrack industry is entitled to a classification of seasonal employment as described in R.C. 4141.33(A)." The fact that an employer is entitled to a classification as a seasonal employer, and is so classified, does not prevent a finding that the employment practice of the employer is not in conformity with his seasonal classification.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STILLMAN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
STILLMAN, J., of the Eighth Appellate District, sitting for STERN. J.