Evenson v. Unemployment Ins. Appeals Bd.

• Decision Date: 22 October 1976
• Citation: 133 Cal.Rptr. 488,62 Cal.App.3d 1005
• Court: California Court of Appeals
• Parties: Douglas EVENSON, Plaintiff and Appellant, v. CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents. Civ. 38417.

Page 488

133 Cal.Rptr. 488

62 Cal.App.3d 1005

Douglas EVENSON, Plaintiff and Appellant, v.CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents.

Civ. 38417.

Court of Appeal, First District, Division 2, California.

Oct. 22, 1976.

Atchison, Haile & Haight, Santa Cruz, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen. of Cal., Gordon Zane, Deputy Atty. Gen., San Francisco, for defendants and respondents.

Duane W. Anderson, San Francisco, for amicus curiae.

ROUSE, Associate Justice.

Plaintiff appeals from a judgment denying his petition for a writ of mandate to compel the defendant to pay him unemployment insurance benefits.

The record discloses that, on August 1, 1974, the Employment Development Department denied plaintiff, Douglas Evenson, unemployment benefits.There were two grounds for this action: first, that he voluntarily terminated his employment without 'good cause,' within the meaning of section 1256 of the Unemployment Insurance Code when he refused to pay union dues as required by his employer's union contract; second, that because of his long hair and beard he had voluntarily made himself unavailable for employment within the meaning of section 1253, subdivision (c), of the Unemployment Insurance Code.Plaintiff then appealed to a referee who sustained the department's decision on the first ground and thus found it unnecessary to decide the issue of the plaintiff's availability for work.This decision was affirmed by the Unemployment Insurance Appeals Board.

Thereafter, plaintiff sought a writ of mandate from the superior court to set aside the ruling and to compel issuance of the unemployment benefits.Based upon a review of the record of administrative proceedings and the stipulation by the parties that there was no factual dispute, the court made findings of fact as follows: that plaintiff was employed by Pacific Telephone Company for approximately seven and one-half years before terminating his employment on July 16, 1974; that while employed there, he was a member of the Communications Workers of America (a union) and paid dues of $7 a month up to January 1974, at which time he severed his relationship with the union and refused to pay dues because he thought the union was not operating effectively and that it was not properly representing the interests of the union membership; that prior to his withdrawal from the union, the union and the employer had entered into a collective bargaining agreement which provided that each employee who was a member of the union on the date of ratification or approval of the agreement must, as a condition of employment, pay or tender to the union amounts equal to the periodic dues applicable to members; that plaintiff was discharged from his employment solely because he refused to pay dues to the union; and that, prior to discharge, he was twice informed that it was his duty to pay those dues.

The court concluded as a matter of law that the employer-union contract requiring union members to pay union dues as a condition of employment did not violate the First Amendment; that the denial of unemployment benefits to an employee who had been terminated for voluntarily refusing to pay union dues under such a contract did not violate that employee's First Amendment rights; that when the California Unemployment Compensation Appeals Board determines that a former employee is entitled to unemployment benefits, it is required by law to charge the reserve account of the employer to provide such benefits; that respondent board did not abuse its discretion or act in an arbitrary manner during the administrative proceedings in which the plaintiff was denied unemployment benefits; and that it was unnecessary to decide whether the petitioner was unavailable for future employment because of his long hair.

In accordance with these findings, a judgment was entered denying the writ of mandate.Plaintiff appeals from that judgment.

Plaintiff's primary contention on appeal is that the denial of unemployment benefits, based solely upon his refusal to pay union dues, infringes upon his freedom of association, as guaranteed by the First Amendment to the federal Constitution.Plaintiff takes the position that the payment of dues, or their equivalent, brings about an association between the dues payer and the union.According to plaintiff, it follows that the decision whether or not to pay those dues is an exercise of one's right of association, which exercise was penalized by government action when plaintiff was denied unemployment benefits.He claims that when government action penalizes a fundamental First Amendment right, it must be justified by a compelling state interest.Plaintiff denies that any such interest existed here.

In making this argument, plaintiff recognizes that union security clauses such as the one here involved, which condition employment on the payment of dues, have been held constitutional.He contends, however, that the conditioning of unemployment benefits on the payment of those dues involves direct government action, constituting a second penalty on the exercise of his rights of freedom of association, and that the constitutionality of this practice has not been upheld.

In Sherbert v. Verner(1963)374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, a Seventh-Day Adventist was discharged from her job for refusing to work on Saturday, the Sabbath Day of her faith.The State of South Carolina denied her unemployment benefits, claiming that she was unavailable for future work because she refused to work on Saturday.This decision was challenged as penalizing her right of free exercise of religion, as guaranteed by the First Amendment.The court stated that if the decision is to stand, 'it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate . . ..'NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405.'(P. 403, 83 S.Ct. p. 1793.)The court found an unjustified infringement of her rights and held that a state may not constitutionally apply unemployment eligibility provisions so as to penalize the exercise of a worker's First Amendment rights of free exercise of religion and thus compel an abandonment of her religious convictions.(P. 410, 83 S.Ct. 1790.)

In King v. California Unemployment Ins. Appeals Bd.(1972)25 Cal.App.3d 199, 101 Cal.Rptr. 660, the court recognized that Sherbert reasoning applies with equal force to a denial of benefits which penalizes First Amendment rights other than freedom of religion.(Pp. 205--206, 101 Cal.Rptr. 660.)In that case, unemployment benefits were denied an applicant on the ground that he left work voluntarily and without good cause when he was discharged for refusing to remove a beard despite his knowledge that such removal was required in order to continue in his employment.The court found that the appellant's decision to wear the beard was an exercise of his right of freedom of expression and that the denial of benefits infringed on that exercise without the requisite compelling state interest.(P. 206, 101 Cal.Rptr. 660.)

These cases make clear that when one exercises a constitutional right, and that exercise is the reason for the denial of unemployment benefits, then that denial is a penalty on the exercise of a constitutional right and justifiable only by a compelling state interest.Thus, a crucial question in this case is whether or not plaintiff was exercising a constitutional right when he refused to pay union dues.

Plaintiff maintains that the case most closely in point is Retail Clerks v. Schermerhorn(1963)373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678, which he cites for the proposition that the required payment of union dues by nonmembers is the practical equivalent of required membership.He argues that this holding shows that the court recognized the equivalence between formal membership and dues-paying by a nonmember.According to plaintiff, the court decided, in effect, that from the standpoint of the individual, requiring the payment of dues is essentially the same as requiring actual membership in a union.Plaintiff asserts that it is clear, therefore, that the payment of dues brings about an association between the dues payer and the union, which association is protected by the First Amendment.

We believe that plaintiff has misinterpreted the Schermerhorn decision.The basic issue in that case was the scope and effect of section 14(b) of the National Labor Relations Act, which allows a state to prohibit 'agreements requiring membership in a labor organization as a condition of employment . . ..'There the court had to determine if an 'agency shop' clause, which did not require actual membership in the union but did condition employment on the payment of initiation fees and periodic dues, was an 'agreement requiring membership' within the meaning of section 14(b) and therefore an agreement which state law could prohibit.The court held that the agency shop agreement did fall within the purview of section 14(b) and stated that the agency shop agreement 'is the 'practical equivalent' of an 'agreement requiring membership in a labor organization as a condition of employment. ''(P. 751, 83 S.Ct. p. 1465.)

Schermerhorn involved a statutory interpretation of section 14(b).The court was only concerned with determining whether, under the facts of that case, agreements which did not require formal membership in a labor organization were the 'practical equivalent' of 'agreements requiring membership,' as that term was used in section 14(b).The court was not concerned with the practical effect on an individual of a requirement to pay dues...