Anson v. Fisher Amusement Corp., 37478

• Decision Date: 19 December 1958
• Docket Number: No. 37478,37478
• Citation: 254 Minn. 93,93 N.W.2d 815
• Court: Minnesota Supreme Court
• Parties: Murray ANSON, Respondent, and Commissioner of Employment Security, Respondent, v. FISHER AMUSEMENT CORPORATION, Relator.

Page 815

93 N.W.2d 815

254 Minn. 93

Murray ANSON, Respondent and Commissioner of Employment Security, Respondent, v. FISHER AMUSEMENT CORPORATION, Relator.

No. 37478.

Supreme Court of Minnesota.

Dec. 19, 1958.

Syllabus by the Court

When a nonmember of a union local knowingly accepts--or continues--employment with an employer who is subject to the seniority provisions of a collective-bargaining agreement with the union local, he thereby ratifies and accepts the terms of the contract, and, subject to those terms, he constitutes the union his bargaining agent, and its acts are his acts; and when, upon request of the local's business agent, he resigns his employment so that a member of the local may claim his job, his act of resignation is voluntary and without good cause attributable to the employer under M.S.A. § 268.09, subd. 1(1).

Blacker & Blacker, Sidney G. Blacker, Minneapolis, for relator.

Miles Lord, Atty. Gen., George C. Gubbins, J., Asst. Atty. Gen., for respondent.

MATSON, Justice.

Certiorari to review a decision of the commissioner of employment security holding that claimant was not disqualified from benefits under the Employment Security Act and that any benefits paid should be charged to employer's experience-rating account.

The question before us is whether an employee, a nonmember of the union local who resigned from his job in obedience to instructions from the union business representative because of union seniority regulations, is entitled to unemployment benefits when the employer, by a collective-bargaining contract, had agreed that changes of employees should be made according to union seniority rules.

Relator, Fisher Amusement Corporation, is an employer subject to the provisions of the Employment Security Act. It owns and operates three motion picture theatres in Minneapolis, among them being the Campus Theatre. The wages, hours, and other conditions of employment of moving picture machine operators at employer's theatre are governed by a collective-bargaining agreement with Moving Picture Machine Operators Union, Local 219, of Minneapolis, which is affiliated with International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada. Under this agreement, the employer agrees to employ only those operators affiliated, directly or by permit, with Local 219, and the local agrees to furnish competent employees. The contract provision relating to seniority reads as follows:

'All changes of operators shall be made in strict compliance with the laws of Local 219 pertaining to seniority.'

Because of this seniority provision, employer has no control over the selection of projectionists sent him. If the employer decides that he does not want the projectionist who is sent him, he reports that fact to the union and his objection is conclusively ruled upon by a board of union men. ¹

The seniority system of Local 219 divides its members into two groups, the lowest 20 in seniority being called the 'junior group.' If a member not in the junior group is out of work through no fault of his own, he has the right to 'bump' a junior group member and assume the latter's job. Members not in the junior group are not subject to being bumped. If a projectionist job becomes available, it is filled on the basis of seniority. If, however, no member of the local is available or none desires the job, nonmembers of the local occasionally are sent to fill the job. The nonmembers of the local have no seniority status in the union and are subject at all times to being bumped by any member of Local 219. Furthermore, whether or not they are sent to jobs and in which order is entirely discretionary with the business representative of the local. They have the same rights on the job, however, With the exception of seniority, as do members of the local.

Claimant, Murray Anson, was a nonmember of Local 219. He was a member of International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada and a member of New York Local 306, a sister local of 219. He had resided in Minneapolis for 3 1/2 years preceding his claim. Because of his status as a member of a sister local of Local 219, he had been sent, over this period of residency, to various theatres as a projectionist by the business representative of Local 219. He began employment at the Campus Theatre on April 10, 1956, upon being sent there by the local's business representative, Frank Schilken, Jr. This position was available since no member of Local 219 indicated a desire for the job. In accepting the employment, claimant knew that he had no seniority rights and that he was subject to being replaced at any time a member wanted his job. He remained at the Campus Theatre for about 6 months or until October 8, 1956, when Schilken ordered him to resign to make room for a member. In compliance with Schilken's instructions, claimant terminated his services without protest by giving employer 2 weeks' written notice of his resignation. There is no evidence that claimant's termination of work was not in accord with union seniority regulations. The new operator assigned to take claimant's place was accepted without objection by employer.

On December 3, 1956, claimant registered for work at the state employment office and filed a claim for benefits. The claims deputy determined that claimant was involuntarily separated from his employment for reasons not construable as misconduct; that he was not disqualified; and that benefits paid to him, if any, should be charged to employer's experience-rating account. This determination subsequently was affirmed by the decision of the Appeals Tribunal, and its decision in turn was adopted by the commissioner of employment security. The case comes before this court for review on a writ of certiorari.

Up to the time of the issuance of the decision of the Appeals Tribunal, no benefits had actually been paid claimant and employer's experience-rating account had not been charged. Claimant was paid $33 for the week ending December 23, 1956, which he later returned with the statement that he did not feel that he was available for work during such week.

Employer contends that claimant is disqualified from receiving unemployment benefits for two reasons; namely, (1) because he was not 'available for work,' as required by M.S.A. § 268.08, subd. 1(3), and (2) because he voluntarily terminated his employment without good cause attributable to the employer within the meaning of § 268.09, subd. 1(1), which reads:

'An individual shall be disqualified for benefits:

'(1) If such individual voluntarily and without good cause attributable to the employer discontinued his employment with such employer * * *.'

We find it necessary to consider only the second issue.

It is clear from a reading of the statute that, even if the employee voluntarily terminates his employment, he will not be disqualified for compensation unless it is further found that the termination was without good cause attributable to the employer. The commissioner alleges that no voluntary separation existed since claimant was ordered to leave his job by the business representative of Local 219. He further argues that the unemployment was attributable to the employer because of the latter's agreement, as a party to the collective-bargaining contract, that changes of operator were to be made pursuant to union seniority laws. Neither of the contentions of the commissioner can be sustained under the controlling statutory provisions and under our prior decisions.

Normally, either the employee has voluntarily terminated his employment, in which case no compensation is paid, or the employer has without good cause deprived the employee of his employment, in which case compensation is paid. In each of these cases, 'fault' may be attached to one party or the other, and the granting or denying of compensation is in keeping with impartial justice. That 'fault' is relevant in interpreting the Employment Security Act is evidenced by the italicized portions of the general statement of policy embodied in § 268.03, which reads as follows:

'As a guide to the interpretation and application of sections 268.03 to 268.24, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burdens. This can be provided by Encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state will be promoted by providing, under the police powers of the state for the compulsory setting aside of unemployment reserves to be used for the benefit of persons Unemployed through no fault of their own.' (Italics supplied.)

It is clear from the foregoing declaration of policy that the legislature regarded 'fault' as a basic element to be considered in interpreting and applying the act. ² The term 'fault,' and applied to either the employer or the employee, is used in a broad juridical sense and does not necessarily imply a negligent or wrongful act. ³ For example, in one sense the employer should be encouraged to provide more stable employment, and fault attaches to the employer if he does not do so. If the employer fails in this respect, those becoming unemployed are entitled to unemployment compensation. In another sense, however the quoted portion shows that ...