Jenkins v. Review Bd. of Indiana Emp. Sec. Division, 20154

• Decision Date: 28 October 1965
• Docket Number: No. 20154,20154
• Court: Indiana Appellate Court
• Parties: George W. JENKINS, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, Douglas J. Morris, David R. Oliver, and Oscar Alvord, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Potter & Brumfield Division American Machine & Foundry Company, Appellees.

Page 42

211 N.E.2d 42

138 Ind.App. 12

George W. JENKINS, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, Douglas J. Morris, David R. Oliver, and Oscar Alvord, as

Members of and as constituting the Review Board of the

Indiana Employment Security Division, and Potter & Brumfield

Division American Machine & Foundry Company, Appellees.

No. 20154.

Appellate Court of Indiana, In Banc.

Oct. 28, 1965.

[138 INDAPP 13] Lloyd L. DeWester, Jr., Indianapolis, Archie Lapin, Muncie, Ross P. Walker, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Keith Campbell, Deputy Atty. Gen., Mark P. Lockwood, Princeton, for appellee.

HUNTER, Judge.

This is an appeal from proceedings before the Review Board of the Indiana Employment Security Division to determine the eligibility of claimant, the appellant, George W. Jenkins, for benefits under the Indiana Employment Security Act.

The issue was formed by appellant's application for benefits, taken on September 4, 1963, and the local deputy's determination that claimant was ineligible for benefits mailed on September 16, 1963. The issue can be stated simply as follows:

The Review Board in its findings and conclusions stated in part as follows:

'* * * that he (claimant) was retired pursuant to contract on August 30, 1963, which brings this case squarely within the rule of Ball Bros. v. Review Board (1963), Ind.App., 189 N.E.(2d) 429. The claimant's contention * * * that he was physically able to work and could have continued doing the same work as of the time he retired, is beside the point * * * the claimant's argument to the Review Board, that Sec. 3401 of the Indiana Employment Security Act forbids agreement by anyone to waive, release or commute any unemployment compensation rights is not well taken; he simply agreed to quit work when he had reached the age of 68. Hence, claimant's employment termination on August 30, 1963, was voluntary on his part.

The Review Board finds the claimant voluntarily left his work without good cause on August 30, 1963.'

[138 INDAPP 14] The facts as revealed by the record in this appeal may be summarized as follows, to-wit: claimant worked for Potter & Brumfield Division about nine (9) years and was retired August 30, 1963 under the collective bargaining agreement between the company and the International Association of Machinists, Local 1459. The claimant testified his employment was terminated for no other reason and that he was physically able to work and could have continued to do some work. He further testified that if he had known that the Appellate Court would rule like this (referring to the Ball Brothers Co. v. Review Bd. of Ind. Emp. Sec. Div. (1963), Ind.App., 189 N.E.2d 429) he would not have been in favor of the contract.

Claimant's exhibit No. 1 admitted in evidence is a statement of the Director of Industrial Relations, Potter & Brumfield Division, and reads as follows:

'This will certify that George W. Jenkins is being forced to retire as of September 1, 1963, under the provisions of a retirement annuity plan in effect at Potter & Brumfield Division A.M.F. Princeton, Indiana.' (our emphasis)

Thereafter, appellant perfected his appeal from the findings and conclusions of the Review Board.

On August 14, 1964, appellee Review Board filed petition to remand, averring that its decision was based upon an unadmitted collective bargaining agreement. This court granted said petition. See Jenkins v. Review Board of Indiana Emp. Sec. Div. (1964), Ind.App., 200 N.E.2d 643.

Thereafter, appellant and appellee joined in the admission of Joint exhibit A on October 28, 1964. The exhibits admitted were (1) the collective bargaining agreement, and (2) appellant's application for benefits.

The foregoing compliance with the remand order was certified to this court on November 5, 1964.

The parts of Joint exhibit A pertinent to this appeal and [138 INDAPP 15] hereinafter referred to are Article XII 22.1, 22.2, 22.3 and Article VII 7.7 which provide in part as follows:

'22.1 The Company agrees to maintain the AMF Retirement Annuity Plan for Hourly Paid Employees as amended April 1, 1963.

22.2 Booklets embodying all the details of the plan will be furnished to all employees in the bargaining unit.

22.3 Normal retirement age under the plan shall be 65 years. However, all employees will be given an opportunity to continue employment to age 68 provided they are and continue to be capable of performing the work to which they are assigned at normal efficiency. Retirement will be compulsory at age 68.'

* * *

* * * '7.7 An employee's seniority rights shall terminate if he quits or is discharged for cause * * *'

The only evidence is that of the claimant, the employer having declined to appear at the referee's hearing.

Appellant assigns as error 'that the decision of the Review Board is contrary to law' and in support thereof urges the following points in his brief:

1. Said decision is contrary to the better reasoned authorities both in Indiana and in other jurisdictions.

2. The decision is contrary to express provisions of the Indiana Employment Security Act.

3. A ruling and holding by the Board that the appellant is eligible for benefits would not unlawfully vitiate the obligations of the collective bargaining agreement.

4. Said decision in effect discriminates between union and non-union members.

Therefore, the issue before the court in this appeal may be simply stated as follows: did the claimant voluntarily quit work without good cause solely because he was retired pursuant to the pension plan provisions of a collective bargaining agreement between the employer and his union?

Consideration of the questions presented by this appeal necessarily requires re-examination of the case of Ball Brothers,[138 INDAPP 16] supra, for four (4) basic reasons: (1) the Review Board relied strictly upon the Ball Brothers case; (2) that Ball Brothers case and the Board's reliance upon it became the basis upon which the Board found that the claimant voluntarily quit work without good cause; (3) the claimant's contention that the decision in Ball Brothers and the Board's findings and conclusions constitute unlawful discrimination between union and non-union retirees; and (4) that Ball Brothers and the Board's findings and conclusions here contravene express provisions of the Indiana Employment Security Act.

It was stated by this court in Ball Brothers that a claimant who was required to retire by the terms of a collective bargaining agreement, is not eligible for unemployment compensation benefits because he has in effect agreed to voluntarily quit work without good cause pursuant to the provisions of Sec. 52-1539, Burns' 1964 Replacement which provides in part as follows:

'An individual shall be ineligible for * * * benefit rights: For the week in which he has left work voluntarily without good cause * * * (Acts 1947, ch. 208, Sec. 1501, p. 673; 1957, ch. 261, Sec. 1, p. 615.)' (our emphasis)

In Ball Brothers at p. 430 of 189 N.E.2d, this court stated:

'It is obvious that there is authority for this Court to reach any decision it desires merely by analogizing to one of the lines of authority. The real problem then is to analyze the competing policies upon which other courts have based their decisions.'

The Ball Brothers case was based upon the opinions of three states, namely, Bergseth v. Zinsmaster Baking Co. (1958), 252 Minn. 63, 89 N.W.2d 172; Lamont v. Dir. of Div. of Emp. Sec. (1958), 337 Mass. 328, 149 N.E.2d 372; Kentucky Unemploy. Ins. Com'n v. Kroehler Mfg. Co. (Ky.1961), 352 S.W.2d 212; and Kentucky Unemploy. Ins. Com'n v. Reynolds Metals Co. (Ky.1962), 360 S.W.2d 746.

In Ball Brothers this court cited Kentucky as being one of [138 INDAPP 17] the three states which had decided that an employee who retires pursuant to a pension program at the age specified in a collective bargaining agreement is voluntarily unemployed, to-wit: Kentucky Unemploy. Ins. Com'n v. Kroehler Mfg. Co., supra, and Kentucky Unemploy. Ins. Com'n v. Reynolds Metals Co., supra.

However, in Kentucky the interpretive guidelines stem from the premise that the unemployment compensation law is a tax statute and like other tax statutes should be narrowly construed in favor of the one paying the tax, or in this case, narrowly construed in favor of the employer. Broadway and Fourth Avenue Realty Co. v. Allen (Ky.1962), 365 S.W.2d 302. An opposite view is expressed in the opinions of this court wherein it has been clearly and unequivocally stated that the Indiana Employment Security Act is social legislation. Therefore, the claims of appellants should be considered by this court under a broad and liberal construction of the provisions of the Act. Carnegie-Ill., etc. v. Review Board, etc. (1947), 117 Ind.App. 379, 389-390, 72 N.E.2d 662, 666; Merkle v. Review Bd., Emp. Sec. Div. (1950), 120 Ind.App. 108, 111, 90 N.E.2d 524, 525. Consequently, the Kroehler and Reynolds (Ky.) cases, supra, are not firm precedent for an identical interpretation of the Indiana Employment Security Act.

We also stated in Ball Brothers at p. 431 of 189 N.E.2d that the Minnesota case of Bergseth v. Zinsmaster Baking Co., supra, and the Massachusetts case of Lamont v. Dir. of Div. of Emp. Sec., supra, 'are on all fours with the case before this Court,'. However, upon re-examination of the statutes of Minnesota and Massachusetts, we find that Section 25(e)(1) of the Massachusetts Act at the time of the Lamont decision, read in part as follows:

'The period of unemployment next ensuing and until the individual has had at least four weeks of work and in each of said weeks has earned an amount equivalent to or in excess of his weekly benefit amount after he has left his work [138 INDAPP 18] (1) without good cause attributable to the employing unit or its agent * * *' Massachusetts General Laws Annotated, Vol. 22, ch. 151A, Sec. 25 (e)(1), p. 355. (our emphasis)

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