Chambers v. Owens-Ameskimball Co.

• Citation: 62 N.E.2d 496
• Parties: CHAMBERS v. OWENS-AMESKIMBALL CO. et al.
• Decision Date: 04 August 1945
• Court: United States Court of Appeals (Ohio)

62 N.E.2d 496

CHAMBERS
v.
OWENS-AMESKIMBALL CO. et al.

Court of Appeals of Ohio, Second District, Franklin County.

Aug. 4, 1945.

Action by Harvey Edward Chambers against Owens-Ames-Kimball Company and others to review a decision of the Board of Review, Ohio Bureau of Unemployment Compensation, discontinuing compensation payments to plaintiff. From a judgment of the Common Pleas Court affirming the decision of the Board of Review, plaintiff appeals on questions of law.-[Editorial Statement.]

Judgment reversed and cause remanded.

[62 N.E.2d 497]

Dale Stump and C. J. Warklow, both of Columbus, for plaintiff-appellant.

T. J. Duffy, of Columbus, for Ohio State Federation of Labor.

Hugh S. Jenkins, Atty. Gen., and John M. Woy, Bureau of Unemployment Compensation, of Columbus, for Board of Review, Ohio Bureau of Unemployment Compensation.

HORNBECK, Presiding Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court, Franklin County, affirming a decision of the Board of Review in the cause.

Three errors are assigned, the first two being general and based upon the claim that the judgment of affirmance is contrary to law and not in accord with the evidence. The third assignment is, that the Court erred in holding that the construction of G.C. § 1345-6, subd, e and e(1), as claimed by the appellant would be in conflict with the Constitution of Ohio and the United States.

The facts essential to an appreciation of the question presented are that, for twenty-seven years and at the time of the proceeding under consideration, appellant was a member of the Local Carpenters' Union No. 200 (A.F. of L). On December 9, 1942, appellant became unemployed, applied for and was allowed benefits by the Bureau, but eventually the benefits were ordered stopped by the Board of Review because he refused to accept an offer of work to which he was referred by the Bureau. The job to which appellant was referred was nonunion and he refused to accept it because of that fact and because, under the rules of the union, if he had begun the employment he would have been subject to fine, suspension or expulsion and the resultant loss of privileges and benefits incident to union membership. The nonunion wage, less than union scale, which appellant would have received had he taken the job tendered is not an issue.

The primary question presented by the appeal requires determination of the meaning and application to the facts of G.C. § 1345-6, subds. e and e(1), which read:

‘e. No individual otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept new work if:

‘(1) As a condition of being so employed, he would be required to join a company union, or to resign from or refrain from joining any bona fide labor organization, or would be denied the right to retain membership in and observe the lawful rules of any such organization; * * *.’

The contentions of the parties revolve around the language ‘as a condition of being so employed,’ the Bureau insisting that it means a condition imposed by the employer as a part of the contract of employment, as if the section read-as a condition of the contract by which the employee is tendered employment. It is the claim of the appellant that ‘condition of being so employed’ means condition which inheres in the entering upon or carrying out of the employment, as if it read-as a condition of being in the employment.

[62 N.E.2d 498]

Through Mr. Waller, business representative and financial secretary of Carpenters' Union No. 200, the rule controlling the situation had appellant taken the job offered, is set forth and provides in part:

‘No member of Local Union No. 200will be permitted to work on jobs where nonunion carpenters are working or for an employer who employs nonunion carpenters, * * *.’ (Emphasis ours.)

There are a few reported cases which throw some light upon our question. In McCluskey v. Cromwell, 1 Kern, 593, 599, 11 N.Y. 593, the action was to recover on a bond given by a contractor to secure payment of wages of laborers employed on public works. It was held that language in the bond ‘by laborer employed’ was meant those hired by the contractor, working at his request, and under agreement on his part to compensate them. In Re Estate Cormick. 100, Neb. 669, 160 N.W. 989, L.R.A. 1917D, 265, the action was against an estate in which it was plead that:

‘At the special instance and request of the said Thomas Cormick, your petitioner became employed by the said Thomas Cormick,’ etc.

In the course of the opinion in discussing the issue it is said:

‘To be ‘employed’ in anything means, not only the act of doing it, but also to be engaged to do it; to be under contract or orders to do it.' Citing United States v. Morris, 14 Pet. 464, 475, 10 L.Ed. 543, 549. To like effect is Cox v. Brown, 227 Mo.App. 157, 50 S.W.2d 763, 764.

In Independent Transportation Co. v. Canton Ins. Office, D.C., 173 F. 564, the syllabus reads:

‘The word ‘employed’ is a verb of past and present tense, and cannot be accurately used potentially to indicate future action, unless qualified by additional words.'

The suit was on maritime policies and the following warranty clause: ‘Vessel warranted ‘employed’ in the general passenger and freighting business on Puget Sound, * * *.' It was the claim of the insurance company that the warranties related to future employment of the vessel during the life of the policies and should be interpreted to read ‘vessel warranted to be employed,’ etc. The Court held that interpolation of the words ‘to be’ would materially change the meaning of the clause and would not be permissible. In the language under consideration in the instant case the statute has the qualifying words ‘of being,’ namely, condition ‘of being employed.’

Inasmuch as the language is conceded to be ambiguous, what are the probabilities as to its meaning? The statute was enacted as a part of the Ohio Unemployment Compensation Law. The Bureau of Unemployment Compensation administers a fund made up in large part by contributions from employers, from which fund, under conditions set out in the act, employees are paid while they are unemployed. If an employee who is on...