208 Pa. Super. 280 | Pa. Super. Ct. | 1966
Lead Opinion
Opinion by
Andrew A. McGowan was last employed as a janitor by Grant Building, Inc., in the City of Pittsburgh. His final day of work was August 5, 1963. The Bureau of Employment Security granted his application for benefits. The Referee reversed the Bureau’s decision on the ground that claimant was disqualified for wilful misconduct under Section 402(e) of the Unemploy
This case has given us considerable concern. It has been argued and reargued. An unusual factual situation is presented. It is really a contest between claimant and Local No. 29, Building Service Employes Union. The employer stands innocently in the middle. Local No. 29, a bona fide union, became the bargaining agent for the employes in 1945. As a part of the agree: ment entered into with the employer, it was necessary for all employes to become members of the union. Claimant was then an employe but was in military service. Upon his return to work he did not join the union. For some unexplained reason, this fact was not ascertained until eighteen years later. The record supports the following pertinent findings by the Board of Review: “4. Claimant was never requested to join the local union until August 5, 1963. 5. The claimant was-given the opportunity to join the union upon a payment of $51.00, which included $15.00 for initiation fee, and dues for the year 1962-1963. 6. The claimant refused to pay the $51.00 and thereby became unemployed”.
The record discloses that, when claimant’s nonunion membership became apparent, the employer interceded with the union on his behalf. Instead of requiring claimant to pay full back dues for eighteen years, the union agreed to afford claimant the opportunity to
Section 402(b)(1) of the statute (43 P.S. 802(b) (1)) provides in pertinent part as follows: “An employe shall be ineligible for compensation for any week . . . (b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . And provided further, That no employe shall he deemed to be ineligible under this subsection where as a condition of continuing in employment such employe would be required to join or remain a member of a company union or to resign from or refrain from joining any bona fide labor organization”. This language was construed by this court in O’Donnell Unemployment Compensation Case, 173 Pa. Superior Ct. 263, 98 A. 2d 406. In that case, we affirmed the denial of benefits to a claimant whose continued employment required maintenance of her union membership in good standing, but whose employment was necessarily discontinued by her employer, in accordance with the collective bargaining agreement, because claimant refused to pay a reinstatement fee of $25.00. As therein stated: “But claimant’s unemployment resulted from her own fault, in that it was incurred entirely through her own procrastination, indifference, and arbitrary attitude. She was responsible for the situation, which could have been reasonably avoided, but which forced her employer to dispense with her services”.
In Gianfelice Unemployment Compensation Case, supra, 396 Pa. 545, 153 A. 2d 906, the Supreme Court reversed the decision of the Superior Court in Gianfelice Unemployment Compensation Case, 186 Pa. Superior Ct. 186, 142 A. 2d 739. We had ruled that Gianfelice was a voluntary quit because he had retired at age 68 under the terms of a plan incorporated in the collective bargaining agreement. The Supreme Court ruled that the provisions of the agreement relating to retirement did not control the employe’s right to unemployment compensation. In holding that Gianfelice did not retire voluntarily, it was expressly stated that Section 701 of the statute (43 P.S. 861) rendered invalid any agreement by an employe to waive or release any of his rights under the Act.
This court thereafter decided Williams Unemployment Compensation Case, 193 Pa. Superior Ct. 320, 164 A. 2d 42, in which the writer concurred only in the re-
We are not in accord with the ultimate determination of the Board of Review that the instant case is controlled by the Gianfelice and Williams cases. In each of them the employe was a member of a bona fide labor organization and, as such, a party to the collective bargaining agreement. That agreement was held to be invalid so far as it waived or released any of his rights to unemployment compensation. In the case at bar, however, claimant has merely been required to join a bona fide labor organization on reasonable terms. His present difficulty results from his own voluntary failure to comply with this requirement. It is our view that he does not come under the shelter of the statutory proviso. He was not forced to join or remain a member of a company union or to resign from or refrain from joining a bona fide labor organization. As previously indicated, it is significant that the legislature did not include within the protection of the proviso an employe who is required to join a bona fide labor organization.
It is also important to note that the Gianfelice case was recently distinguished, and its impact limited, in Lybarger Unemployment Compensation Case, 418 Pa. 471, 211 A. 2d 463, in which our Supreme Court af
In conclusion, for eighteen years this claimant consistently obtained and accepted all the benefits of the collective bargaining agreement, including a pension which he now enjoys, without ever having paid a single penny into the union treasury. We are of the opinion that he is not entitled to receive unemployment compensation benefits as a consequence of his own refusal to join the union on payment of a reasonable sum for initiation fee and current dues.
Decision reversed.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
This claimant’s original employment dates back to 1943 when he was first hired as a janitor without any conditions as to union membership. Thereafter he was inducted into the military service and under Section 8(c) of the Selective Training and Service Act of 1940,
At no time has claimant been a union member or subject to the terms of the collective bargaining agreement. Therefore, cases such as Gianfelice and Lybarger have only limited application since they involved claimants who were union members. Furthermore, Section 402(b) (1), 43 P.S. §802(b) (1), of the statute has no application because claimant was not required to join a company union or to resign from or refrain from joining a bona fide labor organization. On the contrary, he was being required to join the latter type organization as a condition for his continued employment by appellant. The Board in its decision stated that, “. . . [claimant] was dropped from the payroll because he was not and would not become a member of this union.” Whether his separation be considered a voluntary quit or a dismissal, the only question presented to us is whether his refusal to join Local 29 renders him ineligible for unemployment benefits.
For our purpose we shall assume that appellant could legally terminate the employer-employe relationship at any time after the expiration of the one year
Numerous cases on this point have reached this Court, as well as our Supreme Court, under various factual situations. In Barclay White Co. v. Unemployment Compensation Board of Review, Department of Labor and Industry, 356 Pa. 43, 50 A. 2d 336 (1947), cert. denied, 332 U.S. 761, 68 S. Ct. 63, 92 L. Ed. 347, the claimant, a union member, was denied benefits when he would not accept work in an open shop. Therein it was held he refused “suitable work” without “good cause”.
In O’Donnell Unemployment Compensation Case, 173 Pa. Superior Ct. 263, 98 A. 2d 406 (1953), we held a union member ineligible, by failing to pay reasonable charges imposed by her union, on the theory that she did not take reasonable precaution to preserve her employe status, thereby making her a voluntary quit.
In Wallace Unemployment Compensation Case, 187 Pa. Superior Ct. 618, 620, 145 A. 2d 902, 903 (1958), we remanded a case for a specific finding but said, “A claimant who refuses to join a union is not barred from unemployment benefits unless he had knowledge that the employer operated a closed shop when he applied for work and joining the shop union was made a condition of his employment, in the contract of hiring.” (Emphasis supplied.)
However, in Butler Unemployment Compensation Case, 189 Pa. Superior Ct. 605, 608, 151 A. 2d 843, 845 (1959), we distinguished between a company union and a bona fide labor organization and stated, “We are now definitely ruling that a claimant who fails or refuses
But in Williams Unemployment Compensation Case, 193 Pa. Superior Ct. 320, 325, 164 A. 2d 42, 45 (1960), although we did not expressly reverse Butler, we did so in effect by saying, “In view of the now established rule of the G-ianfelice case, supra, and after a careful examination of the above language contained in the act in question, I am unable to read into this language a legislative intention to deny benefits to an employee as a ‘voluntary quit’ for failure to meet the terms of a collective bargaining agreement and so create the hardship this act was intended to alleviate.” We said further, “By ruling ‘that a claimant who fails or refuses to join or remain a member of a bona fide labor organization as a condition of continuing in employment under the contract between such organization and employer, does not have a cause of a necessitous and compelling nature for leaving his work’, this Court goes far beyond the intent of the legislature.” We referred to Barclay White Co. v. Unemployment Compensation Board of Review, Department of Labor and Industry, supra, in that opinion. The courts of some sister states differ on this issue.
As previously stated, I do not believe this case is dependent on Cianfelice or Lybarger since claimant was not a party to the labor contract. I would allow him benefits for the reason that he was hired when there was no union contract and worked for many years as
This conclusion is consistent with the Barclay White Co. case, supra. If a union man may be denied unemployment benefits because he refuses referral work in an open shop, a nonunion man should receive benefits when an employer requires union membership as a condition for continuing his employment in a union shop.' An employer should not be permitted to use union membership to suit his own purpose. Consistency requires that the importance of union membership be evaluated the same in all cases. If it is unimportant for purposes of unemployment compensation, as was held in Barclay White Co., then it should be held unimportant in the present case. HoAvever, it would not be necessary to decide at this time whether a refusal to join the union of a closed shop to which an unemployed nonunion workman has been referred makes him ineligible for subsequent unemployment benefits.
I am not impressed by the argument advanced by appellant that it was not an unreasonable request to ask claimant to pay |51, which included one year’s back dues to cover the 18 years during Avhieh he had
I would affirm the decision of the Board in allowing benefits.
See 90 A.L.R. 2d 851, §7.
So-called “right to work” provision, Section 4(b) of the Labor Management Relations Act, the Act of June 23, 1947, eh. 120, Title I, §101, 61 Stat. 151, as amended, 29 Ü.S.C. 164.