Celanese Corp. of America v. Bartlett

• Decision Date: 15 July 1952
• Docket Number: No. 185,185
• Citation: 200 Md. 397,90 A.2d 208
• Parties: CELANESE CORP. OF AMERICA v. BARTLETT et al.
• Court: Maryland Court of Appeals

Page 397

200 Md. 397

90 A.2d 208

CELANESE CORP. OF AMERICA v. BARTLETT et al.

No. 185.

Court of Appeals of Maryland.

July 15, 1952.

William A. Gunter, Cumberland, for appellant.

James N. Phillips, Baltimore, for Employment Security Board.

Hall Hammond, Atty. Gen., Aaron Baer, Spec. Atty. Gen., on the brief, for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL, Judge.

These are two appeals from an order affirming two decisions of the Employment Security Board of Maryland and dismissing appeals therefrom. Both claimants, Mrs. Bartlett and Miss Arthur, had been employed by the Celanese Corporation, appellant. It is a matter of common knowledge that for some years Celanese's operations and the number of its employees have fluctuated but have been greatly decreased. A collective bargaining agreement between it and the union, dated August 8, 1950, provides, inter alia, that 'the employer will pay technological displacement allowance to employees displaced by technological changes' upon terms and conditions specified. A previous bargaining agreement had contained provisions generally similar but appreciably different in terms and conditions. Technological displacement is defined as not including 'any jobs temporarily discontinued because of trade conditions such as lack of demand for any of' Employer's products. For some time before August 1950 many jobs had in fact been discontinued and the holders 'furloughed', i.e., discharged subject to seniority rights to reemployment when available. Article 16, sections (c)(d) and (e) provide, '(c) When one or more employees are to be permanently displaced by the discontinuance of their jobs due to such technological change, the Employer will promptly notify the Union giving the details of the change, an estimate of the number of jobs abolished, and the approximate date of the change. A notice will be posted in the department stating the nature of the technological change and the number of jobs abolished. Employees of the affected subdivision, exclusive of those on furlough, shall have the right for a period of one (1) week from the date of such notice to apply in writing to the Personnel Department for payment of technological displacement allowance. If the number of applicants is greater than the number of jobs abolished, those applicants with the greatest seniority, in a number equal to the jobs abolished, shall be paid technological displacement allowance. If the number of applicants for technological displacement allowance is less than the number of jobs abolished, then junior employees in a number equal to such difference between those electing to receive technological displacement allowance and the number of jobs abolished shall be furloughed in accordance with seniority. If, as a result of the procedure mentioned above the furlough list has been increased, then a number of employees on such list equal to the number added to the list as a result of the technological change shall have the option of accepting technological displacement allowance or remaining on the furlough list. Employees on the furlough list shall be contacted in the order of seniority and each shall be given three (3) days in which to decide whether to remain on the furlough list or accept technological displacement allowance. In the event all employees elect to remain on the furlough list, the Employer shall be deemed to have discharged its obligation under this section of the Agreement. (d) If an employee displaced by technological change chooses to take technological displacement allowance and thereafter is reemployed at another job by the Employer, he shall be reemployed as a new employee without credit for previous seniority or service. (e) To employees displaced by technological changes who have two years or more of service, technological displacement allowance will be paid on the basis of one week's pay for each year of service. The Employer agrees to inform the Union of the names and amounts paid to employees electing to take technological displacement allowance.' By virtue of the provisions of section (e) the option given by section (c) to 'those applicants with the greatest seniority', and to 'employees on the furlough list * * * in the order of seniority' was given to those employees whose technological displacement allowances were largest (in time). The last paragraph of section (c) illustrates the fact that 'permanent abolition' of a job by technological displacement involves no reduction in actual employment but only reclassification of jobs 'temporarily discontinued' as 'permanently abolished' and corresponding payment of 'technological displacement allowance'. Thus Article 16 subjected no employee or furloughed employee to loss of a job but only gave them options to receive payment of 'technological displacement allowance' on voluntary termination of employment.

On September 22, 1950, Employer, pursuant to the provisions of Article 16, section (c), of the Agreement posted a notice that there were seventy-six jobs in the Twisting Section of the Textile Department which had been permanently abolished as of September 11, 1950, and that employees of this subdivision (not on furlough) had the right for one week to apply for payment of technological displacement allowance.

Mrs. Bartlett had been employed as a machine operator in this subdivision since August 3, 1938. Seniority rating is governed by division and subdivision seniority and is, therefore, not plantwide. Mrs. Bartlett's name therefore was near the top of the seniority list of four hundred employees in the subdivision. She could have continued to work had she chosen to do so. However, in accordance with the option in article 16, section (c), she elected to terminate her employment and on September 29, 1950 made written application for technological displacement allowance. On October 10, 1950 she collected her allowance, amounting to $563.20, the equivalent of one week's pay for each year of her services, and signed a receipt for this payment as 'received on my choice to accept separation allowance rather than a place on Seniority or Preferential Hiring List and on the understanding that this payment terminates all Seniority and Service rights.'

On October 11, 1950 claimant applied to the Board for unemployment compensation. The claim examiner held her disqualified under section 5(b) of the act (Art. 95 A) until she 'has become reemployed and has earnings therein equal to at least ten (10) times her weekly benefit amount', because her unemployment was 'due to her leaving work voluntarily without good cause'. On claimant's appeal, the Referee affirmed the determination of the Claims Examiner. On claimant's appeal to the Board, the Board first denied her request for review, and later 'found that claimant was unemployed because of a lack of work and any benefits which may be paid to her should be charged against the experience rating account of the Celanese Corporation' and held, 'The claimant is unemployed because of lack of work, and did not voluntarily leave work without good cause', and reversed the Referee's decision, but held that 'claimant received wages with respect to the eleven weeks immediately following September 29, 1950 [i.e., technological displacement allowance] and, therefore, is ineligible to receive unemployment compensation benefits from September 29, 1950 to December 10, 1950'. Employer appealed from the Board's decision to the lower court.

Claimant was [in 1950] fifty-three years old. Before the referee she testified that she had been 'hospitalized' three times in nine months, she thought she could take her separation pay, and get a lighter job. Her physician had told her she must have lighter work. She had had double pneumonia. Apart from the state of her health, she had no complaint about her work. 'I mean, it was heavy and it was hard. It was nice work. * * * I hated to give up my job at the plant.'

In this court two questions have been argued, (I) Was claimant entitled to benefits? (a) Was she disqualified, under section 5(b) because 'her unemployment was due to her leaving work voluntarily without good cause'? (b) Was she eligible, under section 4(c), as being 'able to work and available for work'? (II) If she was entitled to benefits, was Employer's account, for the purposes of the experience rating provisions of the act, chargeable with her wages?, or had she, within section 7(c)(7), 'left the service of the employer voluntarily without good cause attributable to her employer'? or had she 'left * * * the service of the employer be reason of any occurrence for which she was or might have been disqualified for benefits under the provisions of section 5'? These questions involve questions of construction of the act on which we have been cited no case in this court, and have found none, but on which there are decisions, sometimes conflicting or variant, in other jurisdictions under more or less similar statutes. For instance, does 'leaving work voluntarily without good cause,' in section 5(b), mean the same or less than leaving work 'voluntarily without good cause attributable to his employer' in section 7(c)(7)? In Morrell & Co. v. Unemployment Compensation Comm., 69 S.D. 618, 13 N.W.2d 498 it was held that the language of section 7(c)(7) was merely declaratory of the meaning of the language of section 5(b), and that the latter, before amendment, meant the same as the former substituted by amendment. In Sturdevant Unemployment Compensation Case, 158 Pa.Super. 548 45 A.2d 898, 901, it was held that a provision such as section 7(c)(7), relating to experience rating, could not operate to affect the meaning of a previous provision, such as section 5(b), but that "without good cause" meant not only "good cause' * * * 'attributable to the employer" but good cause personal to the employee, e. g., bad health or the desire of a wife to be near her...