“ ‘The [A]ct was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own’ ”
How later courts described this case
- “ ‘The [A]ct was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own’ ”
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. I am compelled to dissent from the majority herein for a number of reasons which I herewith set forth. I recognize and approve of the validity of the position of labor unions in representing employees in negotiating *40 labor contracts including beneficial pension plans. I also approve of the holding in Marcum v. Ohio Match Co. (1965), 4 Ohio App. 2d 95 , that an employee is bound by the mandatory retirement provisions in a collective bargaining agreement negotiated on his behalf by his agent, the union, and being so bound has “quit his work without just cause or has been discharged for just cause in connection with his work.”
As stated in May Co. v. Bd. of Review (1975), 49 Ohio App. 2d 21 , 23:
“We see no reason, as a matter of public policy, to apply a different rule solely because an employee is or is not represented by a union which participated in the formulation of company retirement policy .***”
Accordingly, I approve of and endorse employers instituting their own pension and other benefit plans for their employees in the absence of union negotiations. It is my view that in such instance the employer should not be penalized by a determination that an employee reaching the mandatory retirement age under such plan would be considered as quitting his work with just cause or being discharged without just cause.
It must be remembered that when a claim for benefit rights of an employee is approved by the Bureau of Employment Services, the compensation fund as paid in by the employer is charged according to the award. The continuing future status of this fund is indeed very much in the mind of an employer who voluntarily establishes a pension plan for his employees. Certainly, it cannot be assumed that the employer was anticipating both the contributions into the pension fund and having his Unemployment Compensation Fund account depleted by those retiring at the established mandatory age.
The record in this case makes it quite clear that claimant as well as all other employees of Gibson Greeting Cards were given notice of the contents of the company’s retirement plan through publication and distribution of the pension plan handbook for employees. This pension plan became effective on January 1,1970. Prior to the effective date of the pension plan, Gibson had a company financed profit-sharing plan. The funds from such profit-sharing plan were used to finance a portion of the pension plan when it became effective.
*41 Employees had the option when the profit-sharing plan was discontinued, and the pension plan created, of resigninjg their positions and withdrawing their funds, or allowing their funds to be placed into the pension fund. This option continued to remain available thereafter. Any employee, including claimant, could have withdrawn the funds attributable to the former profit-sharing plan in a lump sum.
In 1970, claimant chose to have his profit-sharing funds put in the company pension plan and abided by that decision up to his mandatory retirement a¡ge. The record also shows that leaving the money in the retirement system greatly increased his initial sum therein. Thus, the claimant had elected to take a monthly pension pursuant to the company plan.
Therefore, based upon the above-expressed position, I would hold that a person who accepts a retirement plan which provides for mandatory retirement at a designated age is disqualified from receiving unemployment compensation benefits.
Additionally, it is my view that interpreting R. C. 4141.29 (D) (2) (a) in the manner of the majority herein would be contrary to Section 26 of Article II, Ohio Constitution, which requires that “[A]ll laws, of a general nature, shall have a uniform operation throughout the state***.” The interpretation of this statute as rendered here would allow benefits to an employee retired pursuant to a non-union pension plan, while disqualifying an employee retired pursuant to a union pension plan.
A person who has reached a mandatory retirement age under a pension plan and who is receiving funds thereunder is not permanently excluded from any further participation in the Unemployment Compensation Fund if he is desirous of further employment. If the retired employee wishes to reenter the labor market and works at least 26 weeks in covered employment, pursuant to R. C. 4141.31 (A) (3), he may become eligible for unemployment benefits to be received in addition to pension benefits.
I would resolve the conflict among the appellate districts in accordance with the decision in May Co. v. Bd. of Review, supra.