Churchill Downs, Inc. v. Kentucky Unemployment Ins. Commission

• Decision Date: 01 May 1970
• Citation: 454 S.W.2d 347
• Parties: CHURCHILL DOWNS, INC., Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 347

454 S.W.2d 347

CHURCHILL DOWNS, INC., Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al Appellees.

Court of Appeals of Kentucky.

May 1, 1970.

Rehearing Denied June 26, 1970.

Kent L. McElwain, McElwain, Dinning, Clarke & Winstead, Louisville, for appellant.

Paul E. Tierney, James G. Childers, Frankfort, Herbert Segal, Louisville, for appellees.

CULLEN, Commissioner.

This appeal presents the question of whether certain licensed pari-mutuel employees of appellant Churchill Downs become involuntarily unemployed at the conclusion of each of the two annual race meetings conducted by appellant, so as to qualify for unemployment compensation payable from appellant's reserve account. The trial court adjudged that the employees are entitled to receive unemployment compensation payments from appellant's reserve account. Appellant contends that the employees do not become unemployed in the circumstances, but even if they do, appellant's reserve account is not chargeable.

The parties cite and rely upon a number of decisions from this and other jurisdictions. The chief authorities urged in behalf of appellant are Kentucky Unemployment Insurance Commission v. Kroehler Mfg. Co., Ky., 352 S.W.2d 212, and Kentucky Unemployment Insurance Commission v. Reynolds Metals Company, Ky., 360 S.W.2d 746. The principal decision from this jurisdiction relied upon by appellees, and considered dispositive by the trial court, is Kentucky Unemployment Insurance Commission v. American National Bank & Trust Company, Ky., 367 S.W.2d 260.

KRS Chapter 341 embodies the statutory basis for unemployment compensation. KRS 341.370 is of particular significance in this decision and in pertinent part provides:

'(2) A worker shall be disqualified from receiving benefits or serving a waiting period for the duration of any period of unemployment with respect to which:'

'(c) He has left his most recent suitable work voluntarily without good cause.'

KRS 341.530(3) relieves an employer's reserve account in certain enumerated circumstances including the circumstance that the employee '* * * voluntarily left his most recent work with such employer without good cause attributable to the employment, * * *.'

It will be observed that the disqualification prescribed by KRS 341.370, and the relief of the employer's reserve account provided by KRS 341.530, both are conditioned upon a finding that the worker voluntarily left his most recent work. The controlling factor is the act of volition on the part of the worker. Any volition or lack of it on the part of the employer is not made relevant.

Our task here is to construe and apply the statute. The policy of the law in the field of economic security has been declared by the legislature and is not for us to question.

The statute really is plain and clear, and does not require construction. The worker is disqualified if he voluntarily left his work. The only question of application is whether the workers in the instant case did voluntarily leave their work.

The appellant's reliance upon Kentucky Unemployment Insurance Commission v. Kroehler Mfg. Co., Ky., 352 S.W.2d 212, and Kentucky Unemployment Insurance Commission v. Reynolds Metals Company, Ky., 360 S.W.2d 746, is as establishing an 'agency theory' under which a worker whose union representatives have agreed to a contract under which the worker's employment is to be terminated upon the happening of certain events is deemed to have voluntarily agreed through his agents to leave his work when one of those events occurs. We do not requestion the validity of the proposition that a worker may make agreements through a union as his agent, but we think the significant consideration in any case is whether the agreement executed on his behalf involved any freedom of choice of the worker which the agent could have exercised for him. In Kroehler and in Reynolds Metals the union contracts provided for retirement at age 65. This provision of the contracts was initially a matter for negotiation; the union, on behalf of the workers, had a choice for the workers not to retire at age 65--not to leave the work. The union, in the bargaining process, chose to agree to the retirement clause, perhaps because the union felt favorable concessions on other points could be obtained from the employer, or even possibly because the union wanted the retirement clause.

In the instant case, if the union contract be considered as embracing the implication of agreement that the pari-mutuel workers would cease working when the meets were over (which agreement the contract did not expressly set forth), it would not represent the exercise of any choice by or on behalf of the workers, because they never had any option to man the mari-mutuel machines at an empty track. Their ceasing to work at the close of each meet was not a matter for negotiation or bargaining--it was simply an inevitable feature of the nature of the work. The workers cannot be considered to have voluntarily agreed to leave the work, because there was nothing to be the subject of an agreement.

The significance of the element of the existence of a choice is illustrated by Kentucky Unemployment Insurance Commission v. Young, Ky., 389 S.W.2d 451. There the employer unilaterally adopted a policy that all workers must retire at age 65. There was no bargaining or exercise of any choice by the workers. This court held that a worker in that case whose employment was terminated when he reached 65 had not voluntarily left his work. The court said:

'As we read the record in this case Young did not have a choice. We think the word 'voluntarily' must certainly be defined as meaning 'freely given' and 'proceeding from one's own choice or full consent."

So we think that any agreement that could be considered to have been made by the pari-mutuel workers in the instant case, whether or not made through their union as 'agent,' to leave work at the close of a meet, was in no sense the exercise of a choice of alternatives so as to be classifiable as a voluntary election to leave the work.

With the 'agency theory' properly out of the way, it becomes apparent that the instant case involves the same principle that governed in Kentucky Unemployment Insurance Commission v. American National Bank & Trust Company, Ky., 367 S.W.2d 260. There the employer bank took temporary quarters during renovation of its permanent building and engaged the employe as a guard at the temporary location. It was contended by the bank that the employe had voluntarily quit when the renovation work was completed and the need for a guard at the temporary quarters ceased, because he had known...