[Cite as State ex rel. Demellweek v. Indus. Comm., 2018-Ohio-714.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Robert Demellweek, :
Relator, :
v. : No. 16AP-874
Industrial Commission of Ohio and : (REGULAR CALENDAR)
Lowe's Home Centers, LLC,
:
Respondents.
:
D E C I S I O N
Rendered on February 27, 2018
On brief: Siferd & McCluskey, LPA, Lisa Bradley and
Richard E. Siferd, for relator.
On brief: Michael DeWine, Attorney General, and Natalie
J. Tackett, for respondent Industrial Commission of Ohio.
On brief: Kastner Westman & Wilkins, LLC, Michael J.
Spisak and Catherine R. Gambill, for respondent Lowe's
Home Centers, LLC.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.
{¶ 1} Robert Demellweek filed this action in mandamus seeking a writ to compel
the Industrial Commission of Ohio ("commission") to overturn its finding that
Demellweek was not entitled to temporary total disability ("TTD") compensation because
of a voluntary abandonment of his employment with Lowe's Home Centers, LLC
("Lowe's").
{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
No. 16AP-874 2
the pertinent evidence and filed briefs. The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
law. The magistrate's decision includes a recommendation that we grant a writ
compelling the commission to vacate its order denying TTD compensation for
Demellweek based on voluntary abandonment of employment and to conduct additional
proceedings to determine if he otherwise is entitled to TTD compensation.
{¶ 3} Counsel for Lowe's has filed objections to the magistrate's decision. Counsel
for the commission has also filed objections to the magistrate's decision. Counsel for
Demellweek has filed a memorandum in response. The case is now before the court for a
full, independent review.
{¶ 4} Demellweek was injured on October 31, 2015 while he was working for
Lowe's, who is a self-insured employer. His workers' compensation claim has been
recognized for "right shoulder sprain; right forearm injury due to overuse; right shoulder
superior labrum anterior posterior (SLAP) lesion."
{¶ 5} When hired, employees of Lowe's are provided a document of over 50 pages
which is meant to guide their job activities. Apparently Demellweek received the
document at some point in time. He signed an acknowledgement of receiving the
document.
{¶ 6} Over five months after he was injured, Demellweek was fired for operating
an order picker while not wearing a harness and tether. Over one month later yet,
Demellweek applied for TTD compensation.
{¶ 7} Following a hearing before a district hearing officer ("DHO") of the
commission, the TTD compensation was granted. The DHO rejected the argument on
behalf of Lowe's that Demellweek had voluntarily abandoned his employment with
Lowe's.
{¶ 8} On June 1, 2016, Demellweek had surgery on his injured right shoulder.
{¶ 9} Counsel for Lowe's appealed the order of the DHO granting TTD
compensation. A staff hearing officer ("SHO") reviewed the situation and reached a
different conclusion. Summaries of the orders of the DHO and SHO are contained in our
magistrate's decision. Parts of the document from Lowe's, now frequently referred to as
an employee handbook, are also in the magistrate's decision, specifically HR policy 315.
No. 16AP-874 3
{¶ 10} The understanding of a Class "A" violation is critical to this case. As noted
in our magistrate's decision, Class "A" violations include the most serious misconduct and
repeated job performance problems. These serious violations normally will result in
immediate discharge. The magistrate concluded the handbook gave Lowe's discretion to
treat the violation as Class "A" or Class "B." They treated it as Class "A" without
explanation, evading review.
{¶ 11} Demellweek was accused of using a picker only a matter of inches off the
ground. This is no indication he endangered himself or others by not wearing a harness
or tether under the circumstances. There is no indication that he did this on a regular or
frequent basis. There are no claims he had been disciplined for this or any related
conduct before.
{¶ 12} Nothing in the record before us indicates that Demellweek was on notice
that operating a picker a few inches off the ground was conduct which would warrant
immediate firing. This case is not like the early abandonment of employment cases which
involved situations in which employees comes to work drunk or stoned and therefore
were on notice they could or would be immediately fired. This is not a case where
Demellweek was endangering himself or others. This is a case where a worker violated
one provision in a handbook of over 50 pages.
{¶ 13} Voluntary abandonment of employment still is a doctrine that bars receipt
of TTD compensation in a situation where an employee has to be on notice that his or her
conduct can be expected to get him or her fired and then the employee chooses to engage
in the conduct anyway. Voluntary abandonment of employment is not meant to be a
vehicle which allows a self-insured employer to rid itself of injured workers for a minor
violation of a work rule, written or not.
{¶ 14} We overrule the objections to the magistrate's decision. We adopt the
findings of fact in the magistrate's decision except the inaccurate indication that the DHO
failed to grant TTD compensation. We also adopt the conclusions of law in the
magistrate's decision as amplified herein. We grant a writ of mandamus ordering the
commission to vacate the October 4, 2016 order of its SHO and to issue a new order that
determines the merits of Demellweek's June 21, 2016 motion for TTD compensation
absent a finding that Demellweek voluntarily abandoned his employment.
No. 16AP-874 4
Objections overruled; writ of mandamus granted.
BROWN, P.J., concurs in judgment only
DORRIAN, J., concurs in judgment only.
DORRIAN, J., concurring in judgment only.
{¶ 15} I concur in judgment only. On the facts of the case, given the evidence
regarding the practice, customs and usage of the picker device, as well as the common
sense and good judgment standard of conduct incorporated into the HR policies, I would
find State ex rel. Louisiana-Pacific, Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995),
criteria was not met even when considering the HR Policy 315 categories.
No. 16AP-874 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Robert Demellweek, :
Relator, :
v. : No. 16AP-874
Industrial Commission of Ohio : (REGULAR CALENDAR)
and
Lowe's Home Centers, LLC, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on August 7, 2017
Siferd & McCluskey, LPA, Richard E. Siferd, and Lisa R.
Bradley, for relator.
Michael DeWine, Attorney General, and Natalie J. Tackett,
for respondent Industrial Commission of Ohio.
Kastner Westman & Wilkins, LLC, and R. Clint Zollinger, for
respondent Lowe's Home Centers, LLC.
IN MANDAMUS
{¶ 16} In this original action, relator, Robert Demellweek, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the October 4, 2016 order of its staff hearing officer ("SHO") that denies relator's June 21,
2016 motion for temporary total disability ("TTD") compensation starting June 1, 2016 on
grounds that relator voluntarily abandoned his employment with respondent, Lowe's
Home Centers, LLC, and to enter an order awarding TTD compensation.
No. 16AP-874 6
Findings of Fact:
{¶ 17} 1. On October 31, 2015, relator injured his right shoulder and forearm while
employed with respondent, Lowe's Home Centers, LLC ("Lowe's"), a self-insured
employer under Ohio's workers' compensation laws.
{¶ 18} 2. The industrial claim (No. 15-854338) is allowed for "right shoulder sprain;
right forearm injury due to overuse; right shoulder superior labrum anterior posterior
(SLAP) lesion."
{¶ 19} 3. Earlier, on February 10, 2015, relator signed a three-page document
prepared by Lowe's captioned "Key Responsibilities Guide." At the top of the first page, the
document indicates that it is regarding "Job Title: Delivery Driver."
{¶ 20} Thereunder, under the caption "Key Responsibilities," 28 unenumerated items
are listed. For example, the first item reads: "Secures truck contents before operating
vehicle."
{¶ 21} Thereunder, under the caption "Physical Requirements," 13 unenumerated
items are listed. For example, the first item reads: "Safety Harness: The ability to wear the
safety harness to perform job functions."
{¶ 22} At page three of the document, the following pre-printed "Acknowledgment" is
printed above a signature line for the "Applicant/Associate."
I acknowledge that I have read the Job Description and Key
Responsibilities Guide and I understand what would be
expected of me. The Company reserves the right to change
or reassign job duties or to combine positions at any time. I
also understand that I am an at-will employee, and the Job
Description and Key Responsibilities Guide do not
constitute a contract of employment.
(Emphasis sic.) Apparently, relator signed the above acknowledgment on February 10,
2015.
{¶ 23} 4. The stipulation of evidence filed by the parties on February 17, 2017
presents a multipage Lowe's document beginning at page 12of the stipulation and ending
at page 40 of the stipulation. The pagination of this document is approximately 58 pages,
including a 2-page appendix. The district hearing officer ("DHO") refers to this document
as the "Employer's Handbook" or the "Employee Manual." The SHO refers to this
No. 16AP-874 7
document as the "guide." In its brief, Lowe's refers to this document as the "Guide."
(Lowe's Brief at 13.) In its brief, the commission refers to the document as "Lowe's
employee handbook." (Commission Brief at 15.) In its brief, the commission also refers
to the document as simply the "handbook." Id. In his brief, relator refers to the document
as the "handbook." (Relator's Brief at ix.)
{¶ 24} 5. On the first page or cover page of the approximate 58 page document,
Lowe's states: "New employees are to keep this guide in their apron or vest pocket during
their first 30 days of employment."
{¶ 25} 6. Cleary, on careful examination of the three-page document prepared by
Lowe's and captioned "Key Responsibilities Guide" and relator's acknowledgment on the
third page, there is nothing to suggest that relator acknowledged receipt of the so-called
handbook when he signed the acknowledgment on February 10, 2015.
{¶ 26} 7. However, in his brief, relator, through counsel, refers to "a 58 page
handbook given to Demellweek when he was hired." (Relator's Brief at ix.)
{¶ 27} 8. In its brief, the commission, through counsel, states:
He signed his name acknowledging receipt of the handbook
and policies. His signature also acknowledged that he had
read the handbook and that he was willing to follow those
policies as a condition of his employment by Lowe's. * * *
Demellweek had been provided Lowe's work rules and knew
the consequences of violation of Lowe's safety rules. * * * As
of February 10, 2015, Demellweek had possession of Lowe's
employee handbook.
(Commission's Brief at 15.)
{¶ 28} 9. The magistrate disagrees with the commission's assertion that relator
acknowledged receipt of the handbook and that he had read the handbook when he signed
the acknowledgment on page three of the Lowe's document captioned "Key
Responsibilities Guide."
{¶ 29} 10. Notwithstanding the magistrate's disagreement with the commission's
assertion regarding the scope of relator's February 10, 2015 acknowledgment, it appears
that relator concedes that he received the handbook when he was hired.
{¶ 30} 11. On April 18, 2016, Lowe's management completed a Lowe's form
captioned "Employee Corrective Action Report." On the form, Lowe's indicated that
No. 16AP-874 8
relator's employment was terminated. On the form, Lowe's responded to several pre-
printed queries:
Describe the conduct/performance (who, what, when, why,
where and how): On the morning of April 11, 2015 [sic], this
associated [sic] was observed by several associates and he
also admitted to operating the order picker without a harness
and tether on.
Expectations (what is expected in the future? Include follow-
up dates):
This associates [sic] is being terminated for a class A safety
violation.
{¶ 31} 12. Relator refused to sign the completed form.
{¶ 32} 13. The parties stipulate that the "Employee Corrective Action Report"
incorrectly states the date of the alleged violation. The date of the alleged violation is
April 11, 2016. See supplemental stipulation of evidence filed on July 21, 2017.
{¶ 33} 14. On June 1, 2016, treating physician Robert J. Nowinski, D.O.,
completed a form prepared by the Ohio Bureau of Workers' Compensation ("bureau")
captioned "Physician's Report of Work Ability." The bureau designates the form as a
"Medco-14." On the Medco-14, Dr. Nowinski certified that, effective June 1, 2016, relator
cannot return to his former position of employment. On the form, Dr. Nowinski
estimated that relator should be able to return to the job held on the date of injury on
September 5, 2016.
{¶ 34} 15. On June 14, 2016, Dr. Nowinski completed a bureau form captioned
"Request for Temporary Total Compensation." The bureau designates the form as a C-84.
{¶ 35} 16. On June 21, 2016, on form C-86, relator moved for the payment of TTD
compensation starting June 1, 2016. In support, relator submitted the June 1, 2016
Medco-14 from Dr. Nowinski and the June 14, 2016 C-84 from Dr. Nowinski.
{¶ 36} 17. Following an August 18, 2016 hearing, a DHO issued an order denying
relator's request for TTD compensation. Citing State ex rel. Louisiana-Pacific Corp. v.
Indus. Comm., 72 Ohio St.3d 401 (1995), the DHO held that relator had not voluntarily
abandoned his employment with Lowe's when he was terminated for violation of a safety
rule. The DHO's order explains:
No. 16AP-874 9
It is the order of the District Hearing Officer that the C-86
Motion filed by Injured Worker on 06/21/2016 is granted as
provided by this order. Pay temporary total 06/01/2016
through 09/05/2016 less any days worked.
The parties stipulate to the following facts in this case.
Injured Worker sustained an injury to the right shoulder on
or about 10/31/2015. On 06/01/2016 the Injured Worker
underwent a related surgery to the right shoulder which was
approved by the Self-Insured Employer.
The Employer offers a Louisiana-Pacific v. Industrial
Commission defense to the payment of benefits. This defense
is based upon post injury conduct occurring on 04/11/2015
[sic].
On 04/11/2015 [sic], the Injured Worker was using a picker
and per his own admission was not using a safety belt.
A review of the Employer's handbook, specifically pages 22
and 25 indicate that a Class A Safety Violation occurs when
an Injured Worker uses a picker device without a safety
harness. The written Employee Manual indicates that this
[is] a dischargeable offense and for this reason the Employer
seeks Louisiana-Pacific protection against paying further
temporary benefits.
The Injured Worker offers extensive testimony concerning
the practice and application of using a picker as well as a
specific events of 04/11/2015 [sic]. The Injured Worker
testifies that the picker he was using on 04/11/2015 [sic] was
at a very low height. Moreover, it is indicated that the safety
belts offered no additional protection from injury based
upon a fall of limited height which was the case on
04/11/2015 [sic].
Moreover, the Injured Worker testified that this rule was
widely ignored, particular[ly] when the safety belts in
question offered no additional protection from injury. The
Injured Worker testified that he had seen supervisory
personnel using the picker without a safety belt.
The Louisiana-Pacific case requires that an Injured Worker
violate a written work rule of clearly prohibiting conduct. It
must also be clear that the conduct could result in a
termination from employment. This Hearing Officer
concludes that the unrebutted testimony of the Injured
No. 16AP-874 10
Worker strongly suggest[s] that the consequence of this
prohibited conduct was obscured by the practice, customs
and usage of the picker device as described by the Injured
Worker.
It is also noted that the Employee Handbook outlines a
standard of conduct which makes reference to common
sense and good judgment. If the use of the safety belt in
question offered no additional protection the Hearing Officer
feels that the Injured Worker could have reasonably
concluded that this was not a prohibited conduct in the
consequence of a discharge was obscured by the usage and
practice. [sic]
The Hearing Officer relies upon the Injured Worker's
testimony as indicated above. The Hearing Officer also relies
upon the MEDCO-14 Physician's Report of Work Ability filed
06/01/2016 authored by Robert J. Nowinski. The Hearing
Officer also relies on the C-84 dated 06/14/2016.
{¶ 37} 17. Lowe's administratively appealed the DHO's order of August 18, 2016.
{¶ 38} 18. Following an October 4, 2016 hearing, an SHO issued an order that
vacates the DHO order of August 18, 2016 and determines the request for TTD
compensation. The DHO's order explains:
This Hearing Officer denies payment of temporary total
disability compensation from 06/01/2016 to present,
10/04/2016.
Consistent with Louisiana-Pacific this Hearing Officer finds
payment of temporary total disability compensation is
precluded as a result of the Injured Worker's voluntary
abandonment of his employment. Under Louisiana-Pacific,
an Injured Worker's termination from his employment is
voluntary when it is generated by an Injured Worker's
violation of a written work rule that (1) clearly defines the
prohibited conduct (2) had been previously identified by the
Employer as a dischargeable offense and (3) was known or
should have been known to the employee. This Hearing
Officer finds on 04/18/2016, the Injured Worker was
terminated for a class A safety violation. The Injured Worker
had been observed by several associates operating an order
picker without the use of a harness and tether. The Injured
Worker admitted to his Employer as well as admitted at
hearing that he operated the picker without a harness and
tether. However, he testified that the picker was only a few
No. 16AP-874 11
inches off of the ground and the safety harness would not
have protected him from injury. He also testified that other
personnel have operated this piece of equipment without a
safety harness and it was not an unusual practice. At hearing,
the Human Resources Manager for Lowe's testified to the
contrary.
This Hearing Officer finds the Injured Worker acknowledged
by signature, on 02/10/2015, that he read the job description
and key responsibilities guide and understood what was
expected of him. This Hearing Officer finds this guide, under
the section regarding standards of conduct, made reference
to class (A) violations which were defined as actions which
would normally subject an employee to immediate
termination on the first occurrence. The list of class A
violations included violations of safety rules or hazardous
materials procedures. This Hearing Officer finds the safety
rules listed under the loss prevention and safety section of
this guide state "an order picker and lift truck cage requires
you to wear a safety belt or harness and fall protection
tether." "Make sure you're attached before using the
equipment." This Hearing Officer finds there is no dispute
that the Injured Worker violated this safety rule and this
Hearing Officer finds it was the prerogative of the Employer
to terminate the Injured Worker based upon his violation. In
light of the aforementioned findings, this Hearing Officer
finds payment of temporary total disability compensation is
precluded based upon the Injured Worker's voluntary
abandonment of his employment under Louisiana-Pacific.
{¶ 39} 19. On October 27, 2016, another SHO mailed an order refusing relator's
appeal of the October 4, 2016 order of the SHO.
{¶ 40} 20. On December 3, 2016, the three-member commission mailed an order
denying relator's November 15, 2016 request for reconsideration.
{¶ 41} 21. As earlier noted, the stipulation of evidence filed by the parties on
February 17, 2017 presents a multipage Lowe's document beginning at page 12and ending
at page 40 of the stipulation. The actual pagination of this document runs approximately
58 pages as each page of the stipulation presents 2 pages from the document. The
magistrate shall refer to this document as the Lowe's handbook.
No. 16AP-874 12
{¶ 42} The Lowe's handbook presents 32 unenumerated sections containing a
caption. Relevant here is a section captioned "Standards of Conduct" and a subsequent
section captioned "Loss Prevention and Safety."
{¶ 43} Under the caption "Standards of Conduct," the handbook provides:
In your day-to-day conduct at Lowe's, you will be expected to
use common sense and good judgment. We believe most
employees know what behavior is acceptable in the work
environment and what is not. Certain kinds of actions or
conduct are obviously unacceptable, but no list of standards
can possibly cover every circumstance.
HR Policy 315 identifies three categories of unacceptable
performance or conduct. Examples of violations in the
respective categories are listed in the policy quoted below;
however, the examples show the relative severity of
violations and are not intended to and do not identify all
possible violations.
Class "A" includes the most serious misconduct and
repeated job performance problems. These serious violations
normally will result in immediate discharge.
Class "B" includes serious acts, which indicate a disregard
of, established rules and/or standards of conduct but are not
so serious as to compel immediate termination. Class "B"
violations will normally result in a written warning for a first
offense, final warning for a second offense and termination
for a subsequent offense. Depending upon the severity of the
infraction or past work history, termination may be
appropriate for the first offense. An employee may commit
multiple Class "B" violations that are not serious when
considered separately, but when grouped together indicate a
pattern of unacceptable behavior. In such cases,
management should consider multiple Class "B" violations
committed in a short period of time as grounds for more
serious corrective action, up to and including termination.
Class "C" generally results in an initial warning. However,
an employee may commit multiple Class "C" violations that,
when considered together, are grounds for more serious
corrective action up to and including termination.
The following categorization is suggested for some of the
more frequent types of violations. If, because of other
circumstances, the manager feels that the suggested category
No. 16AP-874 13
and accompanying discipline are not appropriate, the
manager should normally discuss it with his/her immediate
supervisor and the appropriate Human Resources Manager
before discipline is administered to an employee.
Class A, B and C- Examples
A. Class "A" Violations
The following violations are examples of actions, which will
normally subject an employee to immediate termination on
the first occurrence: This list is not intended to identify all
possible violations.
***
[Twenty-three] Violations of safety rules or hazardous
materials procedures.
***
B. Class "B" Violations
The following violations are examples of actions, which
normally will subject an employee to a written warning for a
first offense, a final warning for a second offense and
termination for a subsequent offense. Depending on the
severity of the violation, a final warning may be given rather
than a written warning. (While termination is normally not
appropriate for a first offense, it is possible, particularly if
the employee's length of service is short or their overall work
record is considered less than acceptable.)
Normally, offenses occurring outside the immediately
preceding 12-month period will not be counted for this
purpose.
***
[Eight] Working in an unsafe manner.
(Emphasis sic.)
{¶ 44} Under the caption "Loss Prevention and Safety[;] Safety First," the
handbook provides:
Safety procedures are usually common sense, but common
sense sometime causes us to touch wet paint. Procedures are
in place to help provide a safe and health[y] work place for
No. 16AP-874 14
you, our customers and fellow employees. Disregarding
safety rules is serious business. When a rule is broken, a
Lowe's employee or customer may be put in danger. For that
reason, violations of safety rules could be grounds for
immediate termination. If you do not know the safety
requirements of your job─ask!
***
Safety Rules
Here are some of the common safety rules to be followed at
Lowe's:
***
An order picker and lift truck cage requires you to wear a
safety belt or harness and fall protection tether. Make sure
you're "attached" before using the equipment.
***
When working "inside" or "on" shelving units over four feet
from the ground, you must have a safety belt or harness and
tether attached to the lift or shelving unit.
(Emphasis sic.)
{¶ 45} 22. On December 22, 2016, relator, Robert Demellweek, filed this
mandamus action.
Conclusions of Law:
{¶ 46} Several issues are presented: (1) did the commission abuse its discretion in
failing to determine whether or not the "order picker" was elevated when it was used by
relator on April 11, 2016, and (2) did the commission abuse its discretion by accepting
Lowe's determination that the safety violation was a class A violation rather than a class B
violation?
{¶ 47} The magistrate finds: (1) the commission did not abuse its discretion in
failing to determine whether or not the "order picker" was elevated when it was used by
relator on April 11, 2016, and (2) the commission abused its discretion by accepting
Lowe's determination that the safety rule violation was a class A violation.
No. 16AP-874 15
{¶ 48} Accordingly, it is the magistrate's decision that this court grant relator's
request for a writ of mandamus, as more fully explained below.
Basic Law: Work Rule Violation Resulting in Termination of Employment
{¶ 49} Louisiana-Pacific is the seminal case regarding work rule violations
resulting in termination of employment.
{¶ 50} In Louisiana-Pacific, the court held that a claimant can voluntarily abandon
his employment and, thus lose eligibility for TTD compensation when he is terminated by
his employer for violation of a written work rule. The court set forth a three-part test
which it described:
[W]e find it difficult to characterize as "involuntary" a
termination generated by the claimant's violation of a
written work rule or policy that (1) clearly defined the
prohibited conduct, (2) had been previously identified by the
employer as a dischargeable offense, and (3) was known or
should have been known to the employee. Defining such an
employment separation as voluntary comports with [State ex
rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, and
State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68
Ohio St.3d 118, 121] -- i.e., that an employee must be
presumed to intend the consequences of his or her voluntary
acts.
Id. at 403.
{¶ 51} In State ex rel. McKnabb v. Indus. Comm., 92 Ohio St.3d 559, 561 (2001),
the court had occasion to clarify the three-part test of Louisiana-Pacific:
Now at issue is Louisiana-Pacific's reference to a written rule
or policy. Claimant considers a written policy to be an
absolute prerequisite to precluding TTC. The commission
disagrees, characterizing Louisiana-Pacific's language as
merely illustrative of a TTC-preclusive firing. We favor
claimant's position.
The commission believes that there are common-sense
infractions that need not be reduced to writing in order to
foreclose TTC if violation triggers termination. This
argument, however, contemplates only some of the
considerations. Written rules do more than just define
prohibited conduct. They set forth a standard of enforcement
as well. Verbal rules can be selectively enforced. Written
policies help prevent arbitrary sanctions and are particularly
No. 16AP-874 16
important when dealing with employment terminations that
may block eligibility for certain benefits.
Id. at 561.
First Issue: Elevation of the Order Picker
{¶ 52} As indicated in the SHO's order of October 4, 2016, relator admitted to his
employer and at the hearing that he operated the picker without a harness and tether.
However, relator testified that "the picker was only a few inches off the ground and the
safety harness would not have protected him from injury." It can be further noted that the
DHO's order of August 18, 2016 states that relator testified that the picker he used on
April 11, 2016 "was at a very low height." It can be further noted that Lowe's submitted no
evidence to contradict relator's testimony regarding elevation of the picker.
{¶ 53} As relator correctly points out, the SHO's order of October 4, 2016 fails to
determine whether or not the order picker was elevated (or the extent of the elevation)
when relator used the picker on April 11, 2016. Lowe's and the commission argue that the
elevation of the picker on April 11, 2016 is irrelevant and, thus the SHO was not required
to make a finding regarding the elevation. The magistrate agrees with Lowe's and the
commission on this point.
{¶ 54} Again, the safety rule at issue states:
An order picker and lift truck cage requires you to wear a
safety belt or harness and fall protection tether. Make sure
you're "attached" before using the equipment.
Again, a subsequent safety rule states:
When working "inside" or "on" shelving units over four feet
from the ground, you must have a safety belt or harness and
tether attached to the lift or shelving unit.
{¶ 55} Here, relator seems to suggest that because the latter safety rule, by its
terms, pertains to shelving units over four feet from the ground, the former rule must
provide a similar height requirement. Relator is incorrect.
{¶ 56} The commission has no authority to rewrite the order picker safety rule so
that some measure of elevation was required. A plain reading of the safety rule indicates
that use of the order picker without a harness and tether is prohibited at any elevation.
No. 16AP-874 17
{¶ 57} It is the employer's prerogative to write its own safety rules and to require
its employees to follow them. It is not the duty of this court to second-guess the wisdom
or effectiveness of the safety rule as written.
{¶ 58} Thus, the magistrate concludes that the commission did not abuse its
discretion in failing to determine whether or not the order picker was elevated when it
was being used by relator on April 11, 2016.
Second Issue: Class A versus Class B Violations
{¶ 59} Under "Standards of Conduct," the handbook lists 24 violations that will
"normally" subject an employee to immediate termination on the first occurrence. These
are examples of class A violations. The 23rd violation on the list is "violations of safety
rules or hazardous materials procedures."
{¶ 60} Also under "Standards of Conduct," the handbook lists 11 violations that will
"normally" subject an employee to a written warning for a first offense. The eighth
violation on the list is "working in an unsafe manner." These are examples of class B
violations.
{¶ 61} Under "Loss Prevention and Safety," the handbook sets forth the safety rule
at issue, i.e., the rule regarding use of the order picker. Also, prefacing the safety rule
regarding the order picker, the following warning is given under "Loss Prevention and
Safety:"
Disregarding safety rules is serious business. When a rule is
broken, a Lowe's employee or customer may be put in
danger. For that reason, violations of safety rules could be
grounds for immediate termination.
{¶ 62} Given the above, the magistrate concludes that the handbook, by its own
terms, gave Lowe's the discretion to treat the order picker violation as either a class A or
class B violation. Lowe's management decided to treat the order picker violation as a class
A violation that subjected relator to immediate termination.
{¶ 63} Significantly, Lowe's provided the commission with no explanation or
supporting documentation to justify treating the order picker violation as a class A
violation rather than a class B violation.
No. 16AP-874 18
{¶ 64} As relator points out, Lowe's "Employee Corrective Action Report," dated
April 18, 2016, fails to indicate that relator had any prior violations of the safety rules.
And while the order picker safety rule does not require elevation for the rule to apply,
clearly, common sense would dictate that a highly elevated order picker would present
more danger than an unelevated one.
{¶ 65} Accepting Lowe's decision to treat the alleged April 11, 2016 violation as a
class A violation rather than a class B violation without an explanation from Lowe's and
supporting evidence, potentially sanctions an arbitrary decision. Also, the lack of an
explanation renders this court unable to review Lowe's decision to treat the alleged
violation as a class A violation.
{¶ 67} Because there was no evidence in the record before the commission on
which the SHO could determine that treatment of the April 11, 2016 alleged violation as a
class A violation was justified, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the October 4, 2016 order of its SHO and
to issue a new order that determines the merits of relator's June 21, 2016 motion for TTD
compensation absent a finding that relator voluntarily abandoned his employment.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).