[Cite as Hertelendy v. Great Lakes Architectural Serv. Sys., Inc., 2012-Ohio-4157.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97782

GEORGE Z. HERTELENDY 

PLAINTIFF-APPELLANT 

vs. 

GREAT LAKES ARCHITECTURAL SERVICE 

SYSTEMS, INC., ET AL. 

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-759133 

BEFORE: Keough, J., Blackmon, A.J., and Boyle, J. 

RELEASED AND JOURNALIZED: September 13, 2012 
ATTORNEY FOR APPELLANT 

Lester S. Potash 

55 Public Square 

Suite 1717 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEES 

For Ohio Department of Job & Family Services 

Mike Dewine 

Ohio Attorney General 

BY: Patrick MacQueeney 

Assistant Attorney General 

615 West Superior Avenue 

11th Floor 

Cleveland, OH 44113-1899

For Great Lakes Architectural Service Systems

Bruce L. Waterhouse 

25 West Prospect Avenue 

Republic Building, Suite 1400 

Cleveland, OH 44115 
KATHLEEN ANN KEOUGH, J.: 

{¶1} Plaintiff-appellant, George Z. Hertelendy (“Hertelendy”), appeals the trial 

court’s decision affirming a judgment of the Ohio Unemployment Compensation Review 

Commission (“UCRC”) that denied his claim for unemployment benefits. For the 

following reasons, we reverse that judgment and remand the matter to the trial court with 

instructions. 

{¶2} Hertelendy was hired by appellee Great Lakes Architectural Service Systems, 

Inc. (“Great Lakes”) on August 25, 2010. Hertelendy’s application for employment 

indicated he was applying for a “fabricator” position. He also noted on his application 

that he was convicted for “driving — OVI.” On August 30, 2010, he was terminated 

from employment with Great Lakes because, according to Mike Kelly (“Kelly”), 

president of Great Lakes, Hertelendy was uninsurable by the company’s insurance carrier 

due to his driving record and thus unable to perform his job as a fabricator and driver. 

{¶3} In September 2010, after being terminated from employment with Great 

Lakes, Hertelendy filed an application for unemployment compensation with appellee 

Ohio Department of Job and Family Services. The agency disallowed the application, 

determining that Hertelendy had been discharged with just cause. On appeal, the 

director’s redetermination affirmed the denial of benefits. A second appeal followed, 

and the matter was transferred to the UCRC for an evidentiary hearing. 
{¶4} On March 2, 2011, a telephone hearing was conducted. Prior to taking any 

testimony, the hearing officer inquired as to the two witnesses Hertelendy listed for the 

hearing. Hertelendy explained that Bob Schibli was a general union organizer of 

Ironworkers Local 468 and that “he got me the job at [Great Lakes] because they needed 

an ironworker and uh so he uh set me up with Mike Kelly and uh that’s when I went for 

the interview.” Hertelendy said that his other witness was John Bielak, union president 

of Ironworkers Local 468. The hearing officer then asked Kelly about his witness — 

Kathy Kelly. Kelly stated that Ms. Kelly was the secretary and treasurer of Great Lakes, 

but that he had more knowledge about Hertelendy’s employment. The hearing officer 

then explained the procedure of the hearing, including that if he determined that the 

parties’ witnesses were relevant and material, he would call them to testify. 

{¶5} Kelly testified that Hertelendy was employed with his company from August 

25 to August 30, 2010 as “one of the shop men and he was to be the, one of the drivers 

and basically work in the shop.” Kelly stated that Hertelendy was a member of the 

Ironworkers Local 468 union, which was one of the unions within Great Lakes. The 

other union was for drivers who were employed at Great Lakes. When questioned about 

the circumstances surrounding Hertelendy’s hiring, Kelly stated that when he hired 

Hertelendy, the company “needed a driver and also to see how he would do in the 

fabrication which is his training but he said he’d be able to drive.” 

{¶6} During cross-examination of Kelly, Hertelendy disputed that he was hired as 

a driver, but instead maintained he was hired as a fabricator. Hertelendy stated during 
his cross-examination of Kelly that “I was hired as a fabricator and that was per Bob 

Schibli, that was, I was the ironworker for you [Kelly].” The hearing officer followed up 

and asked Kelly if Hertelendy was hired as a fabricator or as a fabricator and driver. 

Kelly responded that he advised Hertelendy when he was hired that driving was one of his 

main duties because they were a small company and materials needed to be delivered out 

in the field. Hertelendy also stated during his cross-examination of Kelly that he was 

able to drive, but that he “wasn’t hired as a driver the way I understood it. The way I 

understood it and uh it was a fabricator inside ironworkers and uh do some repair field 

work.” 

{¶7} After Kelly testified, the hearing officer asked what Kathy Kelly would 

testify about. Kelly stated that she handles the payroll. The hearing officer then 

determined that her testimony was not needed, which Kelly agreed. 

{¶8} Hertelendy testified that he was hired as a fabricator and he did not know he 

had to drive trucks. He stated he was a member of Ironworkers Local 468, and denied he 

was told when he was hired that part of his duties would be driving to deliver materials to 

the field. Additionally, he denied he was told at the beginning of his employment that he 

had to be insured by Great Lakes’ insurance company. During cross-examination, he 

admitted that he had a DUI conviction and did not tell Kelly during the interview that he 

had any restrictions on his driver’s license. Thereafter, the hearing officer said that he 

did not “believe [he] need[ed] to take the testimony of Mr. Shibly [sic] or Mr. Balke 

[sic].” 
{¶9} In his closing statement, Hertelendy stated that he disclosed on his 

employment application that he was convicted of “OVI” and he also gave Great Lakes his 

driver’s license to copy. Additionally, Hertelendy explained that he had court-ordered 

driving privileges to drive to and from work and during employment, and was able to 

drive employment vehicles. 

{¶10} The hearing officer issued a decision affirming the director’s 

redetermination that Hertelendy was discharged for just cause. In his findings of fact, 

the hearing officer found: 

[Hertelendy] was required to operate company vehicles delivering material 

to the field. As such, it was required that the claimant be insurable by the 

employer’s insurance company. 

When the claimant first arrived at work, it was noticed that his vehicle had 

yellow plates on it. Mr. Kelly checked with his insurance company and his 

insurance company determined that because the claimant had a DUI on his 

record, he was not insurable. 

{¶11} In his decision, the hearing officer reasoned that “[t]he facts set forth above 

show that the claimant was not insurable to the employer’s insurance company which was 

a condition of employment. The claimant was discharged with just cause in connection 

with work.” 

{¶12} Hertelendy subsequently filed a Request for Review, and on June 8, 2011, 

the full UCRC issued a decision disallowing Hertelendy’s request. Hertelendy appealed 

to the common pleas court arguing that the UCRC’s decision was against the manifest 

weight of the evidence and that he was denied a fair hearing, and thus denied due process. 

 Following briefing and a review of the record, the court found that the decision of the 
UCRC was not unlawful, unreasonable, or against the manifest weight of the evidence 

and denied the appeal. The court did not address Hertelendy’s due process argument. 

{¶13} Hertelendy appeals, raising as his sole assignment of error that the trial court 

erred in affirming the denial of his application for unemployment benefits. He contends 

that he was denied a fair UCRC hearing because he was unable to question his witnesses 

and that the decision of the UCRC was unlawful, unreasonable, and against the manifest 

weight of the evidence. 

{¶14} R.C. 4141.29 sets forth the eligibility and qualifications for unemployment 

benefits: 

(D) * * * [N]o individual may serve a waiting period or be paid benefits 

under the following conditions: 

* * * 

(2) For the duration of the individual’s unemployment if the director finds 

that: 

(a) The individual quit work without just cause or has been discharged for 

just cause in connection with the individual’s work * * * . 

{¶15} The Ohio Supreme Court recently reiterated the standard of review for 

unemployment compensation appeals in Williams v. Ohio Dept. of Job & Family Servs., 

129 Ohio St.3d 332, 2011-Ohio-2897, 951 N.E.2d 1031, ¶ 20: 

The Unemployment Compensation Review Commission’s determination of 

whether a claimant was discharged with just cause is appealable to the court 

of common pleas: “If the court finds that the decision of the commission 

was unlawful, unreasonable, or against the manifest weight of the evidence, 

it shall reverse, vacate, or modify the decision, or remand the matter to the 

commission. Otherwise, the court shall affirm the decision of the 

commission.” R.C. 4141.282(H). This limited standard of review applies 
to all appellate courts. Irvine v. Unemp. Comp. Bd. of Review (1985), 19 

Ohio St.3d 15, 18, 482 N.E.2d 587. 

{¶16} While appellate courts are not permitted to make factual findings or to 

determine the credibility of witnesses, they do have the duty to determine whether the 

board’s decision is supported by the evidence in the record. Id., citing Irvine. This duty 

is shared by all reviewing courts, from the first level of review in the common pleas court 

through the final appeal. Therefore, the focus of an appellate court when reviewing an 

unemployment compensation appeal is upon the commission’s — not the trial court’s — 

decision. Howard v. Electronic Classroom of Tomorrow, 10th Dist. No. 11AP-159, 

2011-Ohio 6059, ¶ 12, citing Moore v. Comparison Market, Inc., 9th Dist. No. 23255, 

2006-Ohio-6382, ¶ 8. 

{¶17} Hertelendy contends that he was denied a fair hearing because the hearing 

officer prevented him from calling witnesses that would have testified about the capacity 

in which he was hired — as a fabricator and not a driver. 

{¶18} The principles of due process in administrative hearings apply to all 

hearings conducted under the authority of the commission. R.C. 4141.281(C)(2). The 

key factor in deciding whether a hearing satisfies procedural due process is whether the 

claimant had the opportunity to present the facts that demonstrate he was entitled to 

unemployment benefits. Howard at ¶ 15, citing Atkins v. Ohio Dept. Of Job & Family 

Servs., 10th Dist. No. 08AP-182, 2008-Ohio-4109, ¶ 17. This is because “‘[t]he object 

of the hearing is to ascertain the facts that may or may not entitle the claimant to 

unemployment benefits.’” Id., quoting Bulatko v. Ohio Dept. Of Job & Family Servs., 
7th Dist. No. 07 MA 124, 2008-Ohio-1061, ¶ 11. 

{¶19} While R.C. 4141.281(C)(2) requires that commission hearings satisfy due 

process principles, it also provides that “[i]n conducting hearings, all hearing officers 

shall control the conduct of the hearing, exclude irrelevant and cumulative evidence, and 

give weight to the kind of evidence on which reasonably prudent persons are accustomed 

to rely in the conduct of serious affairs.” Thus, “‘[t]he hearing officer has broad 

discretion in accepting and rejecting evidence and in conducting the hearing in general.’” 

Howard at ¶ 16, quoting Bulatko at ¶ 11. “The hearing officer’s discretion is tempered 

only to the extent that he must afford each party an opportunity to present evidence that 

provides insight into the very subject of the dispute.” Howard at ¶ 16, citing Owens v. 

Ohio Bur. of Emp. Servs., 135 Ohio App.3d 217, 220, 733 N.E.2d 628 (1st Dist.1999). 

{¶20} In this case, Hertelendy wanted to call two witnesses to testify at the 

hearing. The hearing officer determined that Hertelendy’s witnesses were not needed, 

even though the hearing officer did not inquire into the nature of their testimony, like he 

did for Kelly’s witness. Instead, the hearing officer summarily determined they were not 

needed. According to Hertelendy, Bob Schibli and John Bielak would have testified that 

he was hired as a fabricator. 

{¶21} On appeal, the appellees contend that the hearing officer exercised his 

discretion in excluding Hertelendy’s witnesses because their testimony would have been 

cumulative to Hertelendy’s testimony. While a hearing officer may exclude cumulative, 

irrelevant, or immaterial testimony, this discretion is not unfettered. When the testimony 
of witnesses would allow the hearing officer to ascertain the facts that may or may not 

entitle the claimant to benefits, then the testimony is relevant and material. See Howard 

at ¶ 17; Perry v. Buckeye Community Servs., 48 Ohio App.3d 140, 142, 548 N.E.2d 1308 

(4th Dist.1988); but see Powell v. Brown Publishing Co., 3d Dist. No. 10-03-03, 

2003-Ohio-2566, ¶ 7 (hearing officer determined testimony of claimant’s witness was not 

needed after the officer inquired as to the nature of the testimony). 

{¶22} In this case, conflicting testimony was given regarding Hertelendy’s job title 

and description and in what capacity he was hired. Hertelendy testified that he applied 

for and was hired as a fabricator and was not advised that he had to drive for employment. 

 Kelly testified that Hertelendy was hired as one of the drivers and to work in the shop. 

He also testified that when Hertelendy was hired, the company needed a driver, but 

Hertelendy would also be considered as a fabricator because that was his training. 

{¶23} No job description was submitted to the hearing officer, nor is one part of 

the UCRC record. According to Hertelendy’s testimony, Bob Schibli from his union 

referred him to Kelly. Because of the conflicting testimony and lack of a job description, 

the testimony of Hertelendy’s witnesses would have been relevant and material to the 

issue of Hertelendy’s job capacity. 

{¶24} If no dispute as to Hertelendy’s position and job duties when he was hired 

existed, the testimony of his two witnesses may not have been material or relevant as the 

hearing officer concluded. However, the hearing officer concluded that because 

Hertelendy was uninsurable, he was terminated with just cause. Therefore, the ultimate 
issue in this case was whether Hertelendy was hired as a fabricator or driver. If he was 

hired as a fabricator, whether he was insurable would be of no consequence in relation to 

his job duties as fabricator. Hertelendy’s witnesses would have provided relevant and 

material testimony relating to this issue and would have allowed the hearing officer to 

“ascertain the facts that may or may not entitle the claimant to benefits.” 

{¶25} Furthermore, Hertelendy testified that he was insurable, had occupational 

driving privileges, and had disclosed on his application that he had an OVI on his record. 

Kelly testified that after he discovered Hertelendy’s “yellow plates” on his vehicle — 

which was after Hertelendy was hired — he called his insurance company and it advised 

him that Hertelendy was uninsurable due to his driving record. Again, no documentation 

was submitted to the hearing officer evidencing that Kelly’s insurance company would 

not insure Hertelendy. If driving was a condition precedent of employment it is 

interesting that Kelly did not verify Hertelendy’s insurability prior to hiring him. 

{¶26} Great Lakes relies on a variety of cases from this district for its proposition 

that a person can be terminated from employment for just cause when that person is not 

insurable to operate a company’s vehicles for employment purposes. See, e.g., Piazza v. 

Ohio Bur. of Emp. Servs., 72 Ohio App.3d 353, 594 N.E.2d 695 (8th Dist.1991). 

However, the cases cited by Great Lakes are easily distinguishable — the status of the 

employees’ driver’s licenses in each of these cases changed during the term of 

employment with their respective employers, which rendered them uninsurable after they 

knew their job description and the employer’s policies. In this case, Hertelendy’s license 
status did not change after his employment commenced. 

{¶27} Nevertheless, we decline to reach the ultimate issue of the appeal — 

whether Hertelendy was terminated for just cause — because we find that there is 

insufficient evidence in the record to support the commission’s decision and that 

Hertelendy was denied a fair hearing because he was precluded from calling his witnesses 

at the UCRC hearing. The hearing officer abused his discretion by not allowing 

Hertelendy to present testimony that would “ascertain the facts that may or may not 

entitle” him to benefits. 

{¶28} Accordingly, we find merit to Hertelendy’s assignment of error to the 

extent indicated and reverse the judgment of the trial court. We remand the matter to the 

trial court with instructions to reverse the judgment of the commission and remand the 

matter for another hearing consistent with the law and this decision. 

{¶29} Judgment reversed and remanded with instructions. 

It is ordered that appellant recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 
PATRICIA ANN BLACKMON, A.J., and 

MARY J. BOYLE, J., CONCUR