{¶ 24} I respectfully dissent from the majority opinion. I agree with the trial court Shield Alloy's actions resulted in a "lock out", and appellees were entitled to unemployment compensation. My reasons follow.

{¶ 25} "The reasonableness of any business decision depends on the special facts and circumstances of the case." Albaugh v.Unemployment Compensation Review Comm'n (May 11, 2001), Guernsey App. No. 00CA024, unreported. On December 8, 2003, after the NLRB announced its decision, the parties met, but could not reach an agreement. The Union sought reinstatement of the expired CBA with retroactive pay, however, Shield Alloy rejected such. The Union had been working under Shield Alloy's final offer since June 14, 2003. As a result, the Union commenced the strike. I find Shield Alloy changed the status quo by refusing to allow the Union to continue working under the terms of the expired CBA beyond June 14, 2003, and such was unreasonable. The Union had no alternative other than a work stoppage.

{¶ 26} Shield Alloy argues it has not earned a profit since mid-1998, and increasing financial difficulties left it no other option. During negotiations, these financial difficulties were communicated to the Union. The Union recognized the need for concessions, and offered concessions to Shield Alloy, including a three percent wage decrease. Shield Alloy demanded concessions amounting to a twelve to thirteen percent overall decrease, which included a wage decrease, an increase in the employee contribution for health coverage premiums, a decrease in the health coverage, and reduction in overtime pay. Shield Alloy would not move past its twelve percent concessionary demand. Although the company was having financial difficulties, countervailing evidence was presented to the Hearing Officer. For example, the company increased its net working capital from 2001, to 2002. Shield Alloy had also engaged in substantial capital expenditures, which effectively increased its loss.

{¶ 27} I agree with the trial court and find the decision of the Review Commission was unlawful, unreasonable and against the manifest weight of the evidence. Accordingly, I would overrule Shield Alloy's and ODJFS's assignments of error, and affirm the judgment of the Guernsey County Court of Common Pleas.

{¶ 3} By a substantial majority, the members of the Union voted to reject Shield Alloy's "final offer" on June 13, 2003. Shield Alloy interpreted the contract rejection by the Union as an impasse in negotiations, and on June 15, 2003, implemented its "final offer". The Union worked under the "final offer" from June 15, 2003, through December 8, 2003. During this time, the Union filed a charge with the National Labor Relations Board ("NLRB"), alleging the parties had not reached an impasse in negotiations. The NLRB dismissed the charges against Shield Alloy on November 26, 2003. After the NLRB's dismissal, the parties agreed to a December 8, 2003 negotiation session. The parties did not engage in any negotiation sessions between June 13, 2003, and December 8, 2003. The Union advised Shield Alloy if the parties did not revert back to the expired CBA with a retroactive payment in the difference between the implemented "final offer" and the expired CBA, a work stoppage would be recommended to the members. Shield Alloy would not agree to the terms. The members of the Union, by a substantial majority, voted to reject Shield Alloy's "final offer", and commence a work stoppage on December 8, 2003.

{¶ 4} Thereafter, appellees applied for unemployment compensation benefits with the Ohio Bureau of Employment Services. The Unemployment Compensation Review Commission ("Review Commission") found appellees had become unemployed due to a labor dispute other than a lockout; therefore, were not entitled to unemployment compensation benefits. Appellees appealed to the Guernsey County Court of Common Pleas, which reversed the decision of the Review Commission, finding the unemployment of the Union members was due to a lockout, and, the members were entitled to unemployment compensation benefits. The trial court memorialized its decision via Opinion filed March 11, 2005.

{¶ 5} It is from this decision Shield Alloy appeals, raising the following assignments of error:

{¶ 7} "II. THE TRIAL COURT'S OPINION OF MARCH 11, 2005 FAILED TO APPLY THE APPROPRIATE STANDARD OF REVIEW UNDER REVISED CODE SECTION 4141.28(O) BECAUSE THE TRIAL COURT IMPROPERLY MADE A FACTUAL DETERMINATION THAT IS WITHIN THE SOLE JURISDICTION OF THE BOARD OF REVIEW."

{¶ 9} "THE COMMON PLEAS COURT ERRED IN FINDING THAT THE DECISION OF THE OHIO UNEMPLOYMENT COMPENSATION REVIEW COMMISSION WAS UNLAWFUL, UNREASONABLE AND AGAINST THE MAINFEST WEIGHT OF THE EVIDENCE, WHEN THE EVIDENCE SUPPORTS THE CONCLUSION THAT THE CLAIMANTS BECAME UNEMPLOYED DUE TO A LACK OF WORK."

{¶ 11} R.C. 4141.28(O)(1) states any interested party may appeal from a decision of the Review Commission to the court of common pleas, and the court of common pleas may reverse or modify such decision only if it finds the decision was unlawful, unreasonable or against the manifest weight of the evidence. (Emphasis added.) The same standard applies to this Court's review. Tzangas, Plakas Mannos v. Ohio Bur. of Emp. Serv.,73 Ohio St.3d 694, 696, 1995-Ohio-206. "In so reviewing, however, the Review Commission's role as fact finder remains intact, and the fact that reasonable minds may reach different conclusions is not a basis for reversing the Review Commission's decision." Id. at 697. (Emphasis added.) An appellate court may not make factual findings or assess the credibility of witnesses and may determine only whether the evidence supports the Review Commission's decision. Id. at 696-697.

{¶ 12} R.C. 4141.29(D)(1)(a) provides no individual is entitled to unemployment compensation benefits for any week during which their unemployment is due to a labor dispute other than a lockout. Therefore, the sole issue to be decided by this court is whether the appellees' unemployment was due to a lockout or a labor dispute other than a lockout. As such, in order to determine whether the plaintiffs are entitled to benefits, we must determine whether the labor dispute was or was not a lockout within the meaning of the Ohio unemployment compensation law.

{¶ 13} In Zanesville Rapid Transit, Inc. v. Bailey (1958),168 Ohio St. 351, the Ohio Supreme Court defined a "lockout" 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." Id. at 354. A lockout is not confined to an actual physical plant closing; employees may be subjected to a constructive lockout as well. Id. A constructive lockout occurs when "the conditions of further employment announced by the employer are such that the employees could not reasonably be expected to accept them and the terms manifest a purpose on the part of the employer to coerce his employees into accepting them or some other terms." Id. at 355.

{¶ 14} In Zanesville, supra, the Supreme Court focused on whether the employer imposed unreasonable conditions on its employees which left the employees no alternative but to cease working. However, in Bays v. Shenango Co. (1990),53 Ohio St.3d 132, the Court adopted the "status quo" test to determine whether a labor dispute is considered a strike or a lockout. QuotingErie Forge Steel Corp. v. Unemploy. Comp. Bd. of Review (1960), 400 Pa. 440, 443-445, 163 A.2d 91, the Ohio Supreme Court stated:

{¶ 15} "* * * 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 compensation benefits in the case of a `stoppage of work because of a labor dispute' does not apply." Id. at 134-135. (Emphasis in original).

{¶ 16} The "status quo" test, therefore, requires a determination of "which side, union or management, first refused to continue operations under the status quo after the contract had technically expired, but while negotiations were continuing." Id. at 135, quoting Philco Corp v. Unemp. Comp. Bd. of Review (1968), 430 Pa. 101, 103, 242 A.2d 454, 455 (Emphasis added).

{¶ 17} Some courts of appeal have determined the Bays, supra, "status quo" test applies only where negotiations between the parties are ongoing at the time the employer implements its final offer, while the Zanesville, supra, test applies to determine whether a work stoppage is due to a lockout in instances where negotiations have ceased. See: Aliff v.Unemployment Comp. Review Com'n, (March 13, 2003), Cuyahoga App. No. 80767, 2003-Ohio-1155; Johnson v. Ohio Bur. of Emp. Serv. (1993), 82 Ohio App.3d 293. If the relationship between the parties has broken down to the point where meaningful negotiations have ceased, then under Bays, supra, the employer does not deviate from the status quo when it implements its final offer. Johnson, supra at 298.

{¶ 18} In Albaugh v. Unemployment Compensation ReviewComm'n (May 11, 2001), Guernsey App. No. 00CA024, unreported, this Court determined Bays, supra, and Zanesville, supra, must be interpreted together:

{¶ 19} "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 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'." Id.

{¶ 20} The Hearing Officer and Review Commission found that Shield Alloy's imposition of its "final offer" was reasonable based upon a compelling reason and that it was not done to coerce the Union into accepting the offer. Implicitly, the administrative decision also found that the Union's decision to strike was unreasonable.

{¶ 21} There was no factual dispute that Shield Alloy had been sustaining a loss ever since mid-1998. The Union agreed that concessions were necessary. Moreover, when the company first imposed the "final offer", the Union did not strike. Instead, the Union members continued to work. As of December 8, 2003, the facts indicated that the Union did not just request that it continue working under the expired CBA during negotiations but coupled this with a retroactive pay condition or it would strike, thereby changing the status quo existing at that time. Then Union chose to strike.

{¶ 22} This resulted in a labor dispute rather than a lockout, making unemployment benefits inapplicable.

{¶ 23} We find that the decision at the administrative level was supported by the record and was not unlawful or unreasonable.

Boggins, P.J. Edwards, J. concurs separately Hoffman, J. dissents.

{¶ 28} I agree with Judge Boggins as to the disposition of this case, but I disagree with a portion of his analysis. The "status quo" is defined in terms of the pre-existing terms and conditions of employment set by the Collective Bargaining Agreement. M. Conley Co. v. Anderson (March 8, 2006),108 Ohio St.3d 252, 2006-Ohio-792, Para. 16. I disagree that a new status quo was created when the Union continued to work under the company's final offer. I also disagree that the Union, by agreeing to work under the expired Collective Bargaining Agreement (retroactive to the date the CBA expired) or strike, was changing the status quo.

{¶ 29} I agree with Judge Boggins as to the remaining portion of his analysis. I find that Shield Alloy broke the status quo when it implemented its final offer. But, based upon the losses suffered by Shield Alloy and the Union acknowledgement that concessions were necessary, I find that the administrative decision, which found the imposition of Shield Alloy's final offer was reasonable based upon a compelling reason and not done to coerce the Union into accepting the offer, was not unlawful, unreasonable or against the manifest weight of the evidence. Accordingly, I agree with Judge Boggins as to the decision to reverse the judgment of the Guernsey County Court of Common Pleas.