Opinion
No. CV 02-0814357S
June 16, 2006
MEMORANDUM OF DECISION
This is an appeal from a decision of the Employment Security Appeals Division Board of Review ("Board of Review") dated November 28, 2001, affirming a decision of the Appeals Referee, dismissing an appeal of Church Homes, Inc., the present appellant, from the defendant's Administrator's decision dated February 3, 2000, holding that certain strike benefits paid to union members, had no effect on unemployment compensation payments made to these members during and after a prolonged strike by the union against Church Homes. Essentially, the Board of review found such payments not to be wages.
The appeal before this court was heard on May 10, 2006.
I
It is evident that credible arguments can be made by each of the parties as to whether such payments made by the Union to its members during a strike should be considered as offsets to unemployment benefits. Factors to be considered include the intimacy of such payments to the actual work performed by the members such as picketing, brochure distribution, etc., and other such resemblances of such payments to traditional wages.
Since no controlling precedent was found in Connecticut, each party cited a number of out-of-state decisions supporting its position.
Out-of-state decisions holding that strike benefits are not remuneration for services so as to require reduction of unemployment compensation eligibility, include Radice v. New Jersey Department of Labor and Industry, 4 N.J.Super. 364, 67 A.2d 313 (N.J.Super.Ct.App.Div. 1949); Worcester Telegram Publishing Company v. Director of Division of Employment Security, 347 Mass. 505, 198 N.E.2d 892 (Mass. 1964); General Motors Corp. v. Bowling, 83 Ill.2d 539, 426 N.E.2d 1210, 1213 (1981); Fox v. Mayfield, 43 Ohio App.3d 12, 538 N.E.2d 1077, 1079 (Ohio App. 1988) (workers' compensation case).
On the other hand, decisions in Florida and Pennsylvania have reduced an individual's unemployment compensation benefits by payments from a union conditioned on striking employees performing certain services, including picketing. Frank Casilio Sons, Inc. v. Unemployment Compensation Bd. of Review, 667 A.2d 507, 510 (Penn. 1995), appeal denied by, 680 A.2d 1164 (Penn. 1996); International Ass'n of Machinists v. Tucker, 652 S.2d 842, 842-43 (Fla. 1995), review denied by, 661 So.2d 824 (Fla. 1995). The Casilio decision reaches a result different from an earlier Pennsylvania decision, Wilkes-Barr Council of Newspaper Unions v. Pennsylvania, 58 Pa. Commw. Lexis 1248, 426 A.2d 1294 (1981) without referring to the earlier decision.
However, none of these out-of-state decisions have a regulation like § 31-236-50 in Connecticut, which contains the following language:
"Payments rendered by a union to an individual involved in a labor dispute shall have no effect on the individual's benefit entitlement."
It is not seriously disputed that the regulation literally protects the unemployment compensation from any offset by payment to a union member involved in a labor dispute.
The appellant claims, however, that General Statutes § 31-229 overrides this regulation and that the regulation is invalid.
General Statutes § 31-229 provides in relevant part:
Sec. 31-229. Benefit for partial unemployment. An eligible individual who is partially unemployed throughout a week, shall be paid with respect to such week an amount equal to his benefit rate for total unemployment reduced by an amount equal to two-thirds, of the total remuneration, of any nature payable to him for services of any kind during such week.
Key terms like "remuneration" and "services" are not defined in the statute and are flexible enough to be interpreted by regulation. The regulation at issue was promulgated in 1986 after a public hearing at the Connecticut State Labor Department on February 28, 1986. No Judicial decisions have been found interpreting this regulation; however, the regulation appears on its face to interpret the statute rather than to contradict it. The doctrine of legislative acquiescence recognized by our Supreme Court, creates a presumption that the legislature is aware of the interpretation of a statute and its subsequent non-action may be understood as a validation of that interpretation, particularly where the administrative interpretation in the form of a regulation. Berkely v. Gavin, 253 Conn. 761, 776 (2000). It is significant to this doctrine that Legislature has subsequently amended the statutes as it did by Public Act 94-116, implying acquiescence with the six-year-old regulation. Berkely v. Gavin, 253 Conn. 761, 776 (2000).
II
Aside from the clear support of the Board of Review's decision by the regulation, the decision is supported by the undeniable fact that the striking recipients of the payments were in no way employees of the Union; rather they were members of the Union and the payments they received came directly or indirectly from dues paid by these same members. Moreover, while these payments may have required some particular tasks to be performed in support of the strike, payments were not based on an hourly rate or a minimum period of service, or the skill or seniority of a member, and thus had few characteristics of wages.
Those majority out-of-state decisions holding that such payments are strike benefits and not the type of remuneration required to be offset against unemployment compensation payments, reached their conclusions even in the absence of a regulation like that in this case.
The reasoning in those cases, when considered in addition to the validity of the regulation leads us to the conclusion that the appeal in this case should be, and is, dismissed.