Ebasco Services, Inc. v. Bajbek
| Decision Date | 31 May 1955 |
| Docket Number | No. 6001,6001 |
| Parties | EBASCO SERVICES, Incorporated, Petitioner, v. Mayme Z. BAJBEK, widow of, and Theresa Bajbek, child of Joseph Bajbek, deceased, and the Industrial Commission of Arizona, Respondents. |
| Court | Arizona Supreme Court |
John E. Madden, Phoenix, for petitioner.
Odin B. Dodd, Tucson, for respondents Mayme Z. Bajbek and Theresa Bajbek.
Donald J. Morgan, Phoenix, for respondent The Industrial Commission of Arizona, John R. Franks, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel.
This case comes to us by certiorari to set aside an award of the Industrial Commission in favor of respondents, Mayme and Theresa Bajbek, wife and daughter respectively of decedent Joseph Bajbek. Ebasco Services, Incorporated, will hereinafter be referred to as the petitioner; The Industrial Commission as commission, and Mayme and Theresa Bajbek as respondents.
Deceased Bajbek was killed January 4, 1954, at about 8:05 a. m. in a one-car auto accident, while en route from his home in Tucson to a regular shift at employer's jobsite at the Red Rock steam plant about 32 miles from Tucson. Bajbek was paid the sum of $4.00 per day for travel expense.
The sole question presented is whether the commission erred in its findings that death occurred by an accident arising out of and in the course of decedent's employment. In awarding respondents death benefits the commission found that the case came within the exception to the general rule of 'going and coming to work' which will be set out hereafter.
The pertinent facts are these: Petitioner was constructing a new electric steam plant in Red Rock. Like the vast majority of employees at the petitioner's plant, deceased lived in Tucson. There were no housing facilities at the plantsite, and the employees could live wherever they desired. At the time the accident occurred the petitioner provided no transportation facilities for its employees, therefore, each had to provide his own means of transportation from home to jobsite and from jobsite to home. There were six different trades working at petitioner's plant. Of the six trades involved only two, namely the boilermakers and electricians, had a clause in their union contract to receive travel expense to and from work. The decedent was a member of the electrical union.
The terms of decedent's employment were governed by the provisions of the collective bargaining agreement as amended between Local 570 of the IBEW (International Brotherhood of Electrical Workers) and the Arizona Chapter of the NECA (National Electrical Contractors Association).
The agreement, prior to amendments effective September 20, 1953, provided in part:
'A free zone shall be created in Tucson with the following boundaries: * * *.'
The agreement after making provisions for jobs within the free zone, then made the following provisions for jobs outside the free zone:
At the outset of the negotiations in March, 1953, pursuant to the reopening clause in the agreement the NECA advised the IBEW of its desire to have the above language deleted in its entirety from the agreement and provide that 'the Union will be expected to furnish men free of travel time and subsistence in the jurisdiction of the Union.'
During the 1953 negotiations the parties to this agreement discussed the effect of the language above quoted with respect to the possible liability thereunder of employers under the Workmen's Compensation Act, A.C.A.1939, § 56-901 et seq., and to third persons for tort liability by virtue of an employee's negligence while travelling from jobsite to home or from home to jobsite. Both parties, by and through their authorized bargaining representatives entered into the amended agreement later interpreted through proper channels to eliminate any possible liability under the Workmen's Compensation Act, of employers by virtue of said language, and to third persons by virtue of an employee's negligence while travelling from jobsite to home or from home to jobsite.
At the close of negotiations these parties, on August 5, 1953, signed the agreement to amend the above quoted provision, said amendment taking effect on September 20, 1953. The amendment provided for a series of circular zones of ten miles radius each. A free zone was created with Tucson's city hall as the center, including the area within a circle of ten miles' radius. Additional zones outside this free zone were created by using the same center and drawing circles, each one being larger than the preceding one by ten miles.
Under the provisions of the amended agreement, on jobs outside the free zone, employees are paid travel expense with a differential scale for each zone; the farther away the zone the larger the travel expense allowed. Employees in zone 3, the one here involved, received $4.00 per work day.
The travel expense was granted in order to compensate the employees covered thereby for their out-of-pocket expenses in travelling from home to jobsite and from jobsite to home. The decedent being one of the employees covered by the above amendment, received travel expense amounting to $4.00 in addition to his regular daily wages. No deductions of any kind were withheld from this amount. The travel expense was paid by a voucher, separate from the weekly wage check.
A few months after the amendment went into effect it was submitted to the Tucson Joint Conference Committee for an interpretation of the travel expense clause. The contract between the parties created the committee and provided that it shall consist of three members representing the Union and three members representing the employers and that all questions coming before it shall be decided by a majority vote. The committee made the following report on the question presented:
'* * * The negotiating committee intended that the present travel expense clause was out-of-pocket expense to the employee and we intended to get entirely away from the idea of travel time. * * *.'
The fact of the fatal accident is not disputed nor is there any dispute that it occurred while decedent was on his way from home to the jobsite. The question is whether, under the terms of the contract above mentioned, petitioners are entitled to benefits under the Workmen's Compensation Act.
All parties interested in this appeal are in agreement to the effect that the general 'going and coming' rule is still the law in Arizona. This rule was set out by Justice Lockwood in the case of Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703, 705, as follows:
'It is of course the general rule in compensation cases, subject to a few exceptions, that a man does not enter an employment until he reaches the place where the work of his employer is to be carried on, and similarly, when he has finished all the work required by his duties and leaves the place of business of his employer to go to his own home, he has left the employment, and that an accident which may occur to him on his way to or from his work is not in the due course of his employment. * * *.'
But the parties are in disagreement as to the exceptions to the general rule and as to what law the commission should apply. The commission contends that after Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709, the court expressly excluded the idea of 'time' as being the test, but that the test was whether he was being compensated for travel, and whether the accident occurred as a risk incidental to the travel, while petitioner contends that the Serrano case, supra, does not apply to these facts because after the Serrano decision was handed down the parties foresaw the possibility of liability under their then existing contract so they amended the agreement whereby the possibility of liability was eliminated in the manner as stated above.
We are in accord with the views of the petitioner that this case is controlled exclusively by the terms of the amended agreement bearing date August 5, 1953, between the NECA and Local 570 of the IBEW. The amended agreement as it related to the general 'going and coming' rule was interpreted by the Tucson Joint Conference Committee as above...
To continue reading
Request your trial
-
Posey v. Industrial Commission
...should be considered as part of the employee's working hours. Merritt-Chapman cites in support of its position Ebasco Services, Inc., v. Bajbek, 76 Ariz. 89, 284 P.2d 459, a case in which this Court held that a Joint Conference Committee interpretation similar to that set out above, effecte......
-
Gurtler v. Indus. Comm'n of Ariz.
...an accident which may occur [on the employee's way to or from] work is not in the due course of [ ] employment.Ebasco Servs., Inc. v. Bajbek, 79 Ariz. 89, 93, 284 P.2d 459 (1955) (quotation omitted) (emphasis added). The reasoning behind the rule is that until an employee actually begins wo......
-
Brooks v. Industrial Com'n of Arizona, 1
...is the respondents who must show an express agreement avoiding coverage for the travel. This an employer can do. Ebasco Services v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955); see also Fisher Contracting Co. v. Industrial Commission, 27 Ariz.App. 397, 555 P.2d 366 I have examined the "total e......
-
Williamson v. Western-Pacific Dredging Corporation
...susceptible to the same view. Livingston v. State Industrial Accident Comm., 200 Or. 468, 266 P.2d 684 (1954). Ebasco Services, Inc. v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955) is of little, if any, value to defendant. There, on facts similar to ours, the Arizona court held that while an ag......