242 A.2d 786 | Conn. Super. Ct. | 1968
This is an appeal by an employer, Keystone Masonry, Inc., of Chester, Connecticut, from a decision of the unemployment compensation commissioner affirming the finding of the administrator that the plaintiff was entitled to unemployment compensation benefits. The finding of the commissioner shows that the plaintiff is forty-five years old; that he is a member of a union who normally receives a union wage of $5 an hour; that he worked for Keystone almost two months in October to December, 1966, and, not being able to find union work, returned to work with Keystone from January 25, 1967, to February 16, 1967, receiving nonunion wages of $4.50 per hour; that Keystone was nonunion; that on February 16, 1967, the union *448 business agent, seeing the plaintiff on the job, told him to finish the day but not to continue on the nonunion job; that the plaintiff got through at the close of the day on February 16, 1967, "as he did not want to lose his union status"; that the unemployment compensation department policy provides that a nonunion job is not suitable for a union man and the plaintiff had no choice but to leave Keystone's employment; that he left for sufficient cause; and that he was entitled to benefits.
The appeal of Keystone thereafter taken alleges that the commissioner erred in granting the plaintiff compensation because the plaintiff voluntarily refused to work for Keystone when work was available to him, that as a result he was disqualified for benefits under the provisions of §
Keystone questions the sufficiency of the evidence deduced at the hearing of April 24, 1967, in support of the finding of the commissioner. The transcript shows in part that the union business agent, Danaher, told the plaintiff that if he "wouldn't get off [the nonunion job] . . . he would be fined $150." The transcript also shows that it was stated by A. Koury, examiner for the unemployment compensation department, for the administrator, that because the plaintiff was a "union member in good *449 standing . . . he had no choice but to quit the job once he was told to do so by his union business agent." The record further shows that on March 7, 1967, the unemployment office received information from the office of Keystone that the "union official approached claimant and told claimant that unless he quits he will lose his union membership, so claimant quit."
The finding of the commissioner that on February 16, 1967, the plaintiff got through with his work with the Keystone as he "did not want to lose his union status" is sufficiently broad to cover the imposition of a union fine although suggestive of expulsion, although it does not find in what way the union status of the plaintiff would be affected for any breach of union rules or of an order of the union's business agent. A claim of Keystone is that the threat of a fine or other discipline was not shown to be based in any union rules and could have been merely a personal opinion of the union business agent. Since no point was made at the hearing before the commissioner that the plaintiff could not have been subject to a fine or other discipline in the circumstances in question under the union rules, the contrary will not be assumed here under the circumstances. In all events, if the union rules did not provide for the threatened union discipline, the threat of the union business agent would hold out even less "sufficient cause" for a refusal by the plaintiff to continue with or to accept otherwise suitable employment with Keystone.
The parties are not in dispute that except for the nonunion character of Keystone's shop, the work with Keystone was suitable and that there were no conditions or requisites of being employed relating to unions or otherwise attached to the employment by Keystone. Cf. General Statutes §
A motion of Keystone filed May 17, 1967, to correct the finding of facts in several respects was denied by the commissioner on May 22, 1967. A paragraph of the motion requests the addition of a finding stating in effect that on February 16, 1967, and during working hours thereafter, employment was available to the plaintiff with Keystone. Whether this addition to the finding is necessary to a consideration of the merits of the appeal is questionable at best. Quitting an existing job which has been continuing, without more, under the circumstances of this case necessarily implies a refusal to accept the work being offered. Moreover, in view of (a) the facts found by the commissioner, (b) the statement of the union business agent to the plaintiff that he "had no business working for this nonunion employer," and the statement of the agent that he told the plaintiff "if he wouldn't get off he would be fined," (c) the statement of Keystone's office manager that the "union official approached claimant and told claimant unless he quits he will lose his union employment," (d) the statement of Koury, examiner, unemployment compensation department, for the administrator, to the effect that since the plaintiff was a "union member in good standing . . . he had no other choice but to quit the job once he was told to do so by his union business agent," and (e) the record's being devoid of any mention of the unavailability or termination of the job with Keystone, it is a reasonable inference and a fact not in dispute that the job with Keystone was available to the plaintiff on February 16, 1967, and continued available to him thereafter during working hours. The denial by the commissioner of an amendment to the finding to this effect is error, and the motion of Keystone to this effect should have been granted. The finding of the commissioner as thus amended will be considered. *451
The question whether conclusion of the commissioner that the plaintiff is entitled to benefits was correct is one of law involving the interpretation of the pertinent statutes. The issue here presented by the parties is whether a member of a labor organization who quits his work with a nonunion employer and refuses to continue on the job on the sole ground that its acceptance and continuance would jeopardize his union status (a) is "available" within the meaning of the eligibility conditions of General Statutes §
Keystone urges that the plaintiff is not eligible for compensation benefits because he was not available for work. A decisive question is whether his failure to accept the work with Keystone was "without sufficient cause," within the meaning of §
In Barclay White Co. v. Unemployment CompensationBoard of Review,
In Chambers, supra, 569, it was stated: "The right of the claimant must not depend upon union or nonunion status. Where the provisions of a statute and a rule of a private organization to which an applicant for unemployment compensation belongs, both affecting the qualification of such applicant to receive benefits, come in conflict as they do in this case, . . . [u]nquestionably, the statute under which the compensation benefits are authorized and made available must prevail." See 81 C.J.S., Social Security and Public Welfare, § 200, p. 296 nn. 65 66.
It is difficult for this court to find such a legislative intent in support of the plaintiff's interpretation of §§
Under the circumstances of this case, the policy of the department declaring nonunion work unsuitable for a union worker is discriminatory, against *456 public policy, contrary to a purpose of the Unemployment Compensation Act, arbitrary, unreasonable and in abuse of discretion as it applies to the instant case and may not by fiat transform otherwise suitable work into unsuitable labor.
In Barclay White Co., supra, 50, it was held that when a union member is unemployed because he refuses to accept work at a rate less than that established by the union, although not less than the prevailing wage, rather than be fined, suspended or expelled from membership by the union, he was not "involuntarily unemployed" but rather out of work through his own choosing and hence not entitled to unemployment benefits. The reasons of that court apply here, to the effect that a claimant enters into membership in his union of his own volition, because of some contract voluntarily entered into outside of his employment which, in his opinion, may prove more advantageous to him financially, and because he felt that his best financial interests *457 would be served thereby; that if a claimant desired to retain his membership he was bound by those bylaws, for as between himself and the union such bylaws were not unreasonable and quite efficacious in achieving union unity essential to the attainment of its objectives; that a worker is within his legal rights in joining a union and abiding by its lawful rules; that, however, when such a union member is unemployed because he refuses to accept nonunion work, at wages less than those established by the union although not less than those prevailing for similar work, rather than be fined, suspended or expelled from membership by the union, he is not involuntarily unemployed, but rather out of work through his own choosing; that there is no compulsion on him to retain his membership in the union; and, therefore, that the statute excludes him from his benefits when he refuses to accept "suitable work."
Barclay White Co., supra, 50-51, states further that while the public policy of the state does encourage membership in labor organizations, the retention of membership therein is not a surrender to circumstances of the kind and quality which will turn voluntary unemployment into involuntary unemployment. It states further that it would do great violence to the clear and unequivocal wording of the statute to hold that a labor or any other organization can control payments of unemployment benefits to its members by merely forbidding them to work at wages less than those set by it, "or with certain persons, or at certain places, or under certain conditions"; and that if eligibility under such conditions is to be added to the act, it should be done by the legislature.
In the present case, the plaintiff, in refusing nonunion work solely for the latter reason, is refusing to expose himself unequivocally to the labor market *458
and is making himself available for work upon a restricted and contingent basis only, and subject to the condition of his union membership which he is prescribing. The record shows no compelling reason, beyond the plaintiff's own control, limiting him to union membership. See Leclerc v. Administrator,
The unemployment of the plaintiff is voluntary, and for a personal reason not connected with his employment, rendering him not available for work within the meaning of §
The court is compelled to conclude that the refusal of the plaintiff to accept the work being *459
offered by Keystone was a failure without sufficient cause to accept suitable work offered by an employer within the meaning of §
The appeal is sustained, and the decision of the commissioner reversed. Accordingly, this appeal is remanded to the unemployment compensation commissioner for the third district with direction to amend his finding as follows: (1) By striking out so much of paragraph 6 thereof as states "and that claimant had no choice but to leave Keystone Masonry," and all of paragraph 7 of said finding. (2) By incorporating in said findings the following: (a) On February 16, 1967, and during working hours thereafter, employment has been available to said claimant, Marcel Lemelin, with appellant Keystone Masonry, Inc., and (b) said claimant voluntarily refused to accept suitable work available for him with appellant without sufficient cause. (3) By entering a decision disapproving and denying the unemployment compensation benefits in question and reversing the decision of the administrator.