Opinion
Argued March 6, 1981
June 22, 1981.
Unemployment compensation — Voluntary termination — Resignation from lay-off exempt position — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897.
1. An employee who subjects himself to a layoff by resigning from a union position which had rendered him exempt from such a layoff is properly found to have voluntarily terminated employment precluding his receipt of benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897. [138]
Judge CRAIG filed a dissenting opinion which was substantially as follows:
1. An employe laid off because of a lack of work cannot be considered to have voluntarily terminated employment precluding his eligibility for unemployment compensation benefits merely because his resignation from a union office prevented him from claiming layoff exempt status, as it was a lack of work not his loss of a union office unrelated to his employment which led to his unemployment. [140]
Argued March 6, 1981, before Judges BLATT, CRAIG and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 1498 C.D. 1980, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas J. Weaver, No. B-184679.
Application with the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard K. Hohn, with him Joseph Lurie, Galfand, Berger, Senesky, Lurie March, for petitioner.
Stephen B. Lipson, Assistant Attorney General, with him John Kupchinsky, Assistant Attorney General, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
The petitioner seeks review of a decision of the Unemployment Compensation Board of Review (Board) which denied him benefits on the grounds that he voluntarily terminated his employment.
Thomas J. Weaver.
Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
The petitioner's employer laid off a number of employees due to lack of work on January 23, 1980, and the petitioner's seniority rank would have placed him among the furloughed employees except that a provision of the existing collective bargaining agreement exempted him from such a layoff because of his position as recording secretary for the local union. The petitioner resigned from his union position on January 24, 1980, thus forfeiting his exempt status, and when he returned to work the next day he was laid off. The petitioner's claim for unemployment benefits was denied by the Office of Employment Security and, after a hearing, that determination was affirmed by the referee. On further appeal, the Board upheld the denial of benefits, finding that the petitioner had voluntarily terminated his employment in that he himself had "set into motion the process which caused him to be unemployed."
The petitioner claims that his unemployment was related directly to his employer's reduction in work force and that his resignation did nothing more than place him in a more vulnerable seniority position, as occurred in the case of Jarrett Unemployment Compensation Case, 182 Pa. Super. 491, 128 A.2d 184 (1956).
We cannot agree.
In Jarrett, the claimant lost all of her seniority rights with respect to layoffs when she married, as was provided by the collective bargaining agreement in effect. Approximately 22 months later, the employer laid off a number of employees, including the claimant, and the court there held that her employment was not directly caused by her marriage, but was, instead a consequence of the employer's reduction in work force, which was a circumstance over which the claimant had no control.
We believe that the case of Fisher v. Unemployment Compensation Board of Review, 38 Pa. Commw. 518, 393 A.2d 1304 (1978), is more analogous to the present situation. The claimant there signed off a specilaized job and entered the employer's labor pool and as a result he was laid off the next day. The claimant knew that his action would result in the layoff and this Court affirmed the Board's denial of benefits due to the claimant's voluntary termination of his own employment.
In the instant case, which presents a situation similar to that in Fisher, the petitioner's separation from employment immediately followed his resignation as union secretary and there is no dispute that he knew that his action would cause such a result. Furthermore, because the employer's reduction in work force preceded the petitioner's resignation, he obviously could have continued working as long as he retained his union office and such retention was directly within his personal control and not under the control of his employer.
We will therefore affirm the decision of the Board because we believe that the petitioner's resignation constituted a voluntary termination of his employment.
ORDER
AND NOW, this 22nd day of June, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
Judge WILKINSON, Jr. did not participate in the decision in this case.
I respectfully dissent because claimant's union office resignation merely relegated him to his actual seniority. The employer's lack of work was the basic cause of the layoff.
In Labor and Industry Department v. Unemployment Compensation Board of Review, 133 Pa. Super. 518, 521, 3 A.2d 211, 213 (1938), cited with approval in Hammerstone v. Unemployment Compensation Board of Review, 32 Pa. Commw. 256, 378 A.2d 1040 (1977), the court stated:
[t]he phrase 'voluntarily leaving work' in Section 402(b)(1) means that 'he left of his own motion; he was not discharged. It is the opposite of a discharge, dismissal or layoff by the employer or other action by the employer severing relations with his employees. . . .' (Emphasis supplied.)
Here it was the layoff by the employer which effected claimant's removal from the work force. There can be no question that claimant's change of union status would not have idled him if there had been work for him to do.
Claimant's act in this case related only to his officership in his union, a matter independent of his job. In Fisher v. Unemployment Compensation Board of Review, 38 Pa. Commw. 518, 393 A.2d 1304 (1978), on the other hand, claimant's employment relationship was the precise subject of claimant's job transfer action.
Just as the court declined to explore the wisdom of claimant's marriage in Jarrett Unemployment Compensation Case, 182 Pa. Super. 491, 128 A.2d 184 (1956), we should decline to explore the wisdom of claimant's divorce from union office here. The marriage in Jarrett and this claimant's action are equally external to the employer-employee relationship.
With respect to the circumstances motivating his decision, claimant testified that, in addition to his union office, he was secretary of his local volunteer fire company, having been such for four years, and was an elected councilman of his borough, and that his volunteer, union, and public offices entailed conflicting responsibilities and schedule. All of his outside-of-work activities, as well as his personal decisions concerning them, are not germane to the employment relationship issue.
If claimant is to be considered as voluntarily quitting, there must have been continuing work available to him; here that work was available only if claimant maintained union office, not merely union membership as in Gulick v. Unemployment Compensation Board of Review, 37 Pa. Commw. 73, 388 A.2d 1154 (1978). By denying compensation because claimant knew the probable consequences of his resignation, the court is requiring as a condition of eligibility for benefits that a claimant continue in union office from and after any time when his incumbency there affects his senority status, notwithstanding the fact that the sole basis of any relationship between that incumbency and continued employment is a lack of work over which the claimant has no control. The Unemployment Compensation Act "is not designed or intended to implement or impede collective bargaining between unions and employers," D'Amato v. Unemployment Compensation Board of Review, 196 Pa. Super. 76, 78, 173 A.2d 680, 682 (1961); our interpretation should maintain the Act's neutrality as regards collective bargaining activity.
The facts of this case readily distinguish it from Lybarger Unemployment Compensation Case, 203 Pa. Super. 336, 201 A.2d 310 (1964) (rotating layoffs created by share-the-work plan) and Unemployment Compensation Board of Review v. Budzanoski, 21 Pa. Commw. 535, 346 A.2d 864 (1975) (misbehavior in union office).
Accordingly, we should not bar compensation.