# Bays v. Shenango Co.

> Ohio Supreme Court · August 22, 1990 · 53 Ohio St. 3d 132

URL: https://www.frixlaw.com/law-library/cases/6762591

## Case

- **Full name:** Bays v. Shenango Company
- **Court:** Ohio Supreme Court
- **Decided:** August 22, 1990
- **Citations:** 53 Ohio St. 3d 132; 559 N.E.2d 740; 1990 Ohio LEXIS 348
- **Precedential status:** Published
- **Opinion:** Dissent by Holmes
- **Judges:** Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Holmes, J.,
dissenting. I must respectfully dissent from the majority’s opinion which, in my view, misinterprets the concept of status quo, misapplies the test used in determining whether work stoppage is due to a strike or lockout set forth in Oriti v. Bd. of Review (1983), 7 Ohio App. 3d 311 , 7 OBR 394, 455 N.E. 2d 720 , and unreasonably shifts the burden of offering to maintain the status quo squarely onto the shoulders of the employer.
The issue presented by this case is whether the work stoppage at the Shenango Company Dover Plant was caused by a lockout or by a strike, which would disqualify strikers from unemployment compensation benefits. The majority correctly sets forth the test used by the court of appeals in Oriti, supra, but then misapplies this test to the facts. The court in Oriti held that “* * * where employees offer to continue working under the terms of a pre-existing collective bargaining agreement pending final settlement of a labor dispute, the failure of the employer to accept such an offer constitutes a lockout * * *.” Id. at 314 , 7 OBR at 398, 455 N.E. 2d at 724 . The Oriti court relied on the Pennsylvania case of Erie Forge & Steel Corp. v. Unemp. Comp. Bd. of Review (“Vrotney Unemployment Compensation Case”) (1960), 400 Pa. 440 , 163 A. 2d 91 , which included the following test: *137 “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 * * *? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a ‘lockout’ * * Erie Forge, supra, at 444-445 , 163 A. 2d at 93-94 , quoted in Oriti, supra, at 313 , 7 OBR at 396, 455 N.E. 2d at 723 . Oriti and Erie Forge make it clear that employees must offer to extend a pre-existing contract for a reasonable time pending final settlement in order to maintain the status quo. The union in the present case failed under this analysis. Rather, the union made a “take it or leave it” offer of a new one-year contract including the cost-of-living allowance (“COLA”) roll-ins. When the employer found this offer unreasonable both in length and in regard to COLA, the union removed its only offer from the table. The majority believes the rejection of the union’s offer by the employer constituted a lockout. I disagree with the tortured application of the Oriti standard.
The majority strays from the reasoning behind Oriti in two respects. First, by demanding a contract extension with the COLA roll-ins the employees have not offered to continue working in accordance with the status quo. These roll-ins were negotiated terms to be added into the standard hourly wage of the employees. To continue these roll-ins during negotiations would not be true to the concept of status quo. See Fairview School Dist. v. Unemp. Comp. Bd. of Review (1982), 499 Pa. 539 , 454 A. 2d 517 . Maintaining status quo requires both parties to continue negotiations without demanding economic benefit in the interim. Fairview, supra. Allowing roll-ins would be counterproductive to these tenuous labor negotiations. In a situation where the roll-ins are advantageous to the employees, and it is hard to imagine where this would not be the case, the allowance of roll-ins would be a disincentive to settlement. This is especially true when these roll-ins are the subject of ongoing negotiations.
As the Pennsylvania Commonwealth Court held in Fairview School Dist., supra, at 547, 454 A. 2d at 521 , “[t]o require the School District to pay stepped up salary increases beyond the specified years contained in the expired contract changes the existing relationship in the context of the terms and conditions subject to the very negotiations sought to be fostered.”
The second deviation from the Oriti standard is the majority’s conclusion that an offer of a new one-year contract, in and of itself, is an offer to maintain the status quo is ridiculous given the reality that the employer will be forced to give the same bargaining incentives and contractual arrangements for a fixed period (one year) during which he otherwise would be free to negotiate. Oriti and its predecessor Erie Forge assured that an offer of status quo pending settlement would be brought to the table in the interim by placing the burden of offering it on the union. The majority has betrayed the Oriti standard and has substituted a new one in its place. Henceforth, under the majority’s holding, unions need only offer a one-year renewal of the current contract. If the current contract is unacceptable to the employer, the employer is nevertheless forced to accept this arbitrary one-year extension or be found to have locked out the employees without having offered or agreed to status quo in the interim. The majority completely ignores *138 the language in Oriti which requires that the offer by the union to continue work be for a reasonable time, pending settlement. The majority’s holding will have the effect of turning three-year contracts into four-year contracts if the union finds this option more acceptable than what is being offered by the employer at the end of the current contract. One must also wonder whether this arbitrary one-year extension is itself renewable, thus binding the disadvantaged employer into the contract indefinitely.
In the case sub judice, the employees have not offered to continue under the pre-existing contract for a reasonable time pending settlement, but have offered a new one-year contract; therefore, they have not offered to continue under the status quo as suggested by Oriti . As the above analysis suggests, an offer of a new one-year contract is unreasonable in length and is not an offer to continue the status quo during negotiations. See Bishop v. Unemp. Comp. Bd. of Review (1985), 90 Pa. Commw. 553 , 496 A. 2d 110 ; Jehn v. Unemp. Comp. Bd. of Review (1987), 110 Pa. Commw. 209 , 532 A. 2d 57 .
Accordingly, for the foregoing reasons I would affirm the court of appeals.
Moyer, C.J., concurs in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6762591. Public record. Not legal advice.