Young v. Board of Review, Ohio Bureau of Employment Services

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.”

*296. 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 occured 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.

Stíllman, J., of the Eighth.Appellate District,- sitting for Stern. J.