Missouri Div. of Employment Sec. v. Labor & Indus. Relations Com'n of Missouri, 64472

• Decision Date: 31 May 1983
• Docket Number: No. 64472,64472
• Citation: 651 S.W.2d 145
• Court: Missouri Supreme Court
• Parties: MISSOURI DIVISION OF EMPLOYMENT SECURITY, Appellant, v. LABOR & INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, William F. Rothman, et al., Respondents.

Page 145

651 S.W.2d 145

MISSOURI DIVISION OF EMPLOYMENT SECURITY, Appellant, v. LABOR & INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, William F. Rothman, et al., Respondents.

No. 64472.

Supreme Court of Missouri En Banc.

May 31, 1983.

Larry R. Ruhmann, Rick V. Morris, Jefferson City, for appellant.

Timothy P. Duggan, Counsel, Labor & Industrial Relations Com'n, Jefferson City, for respondents.

DONNELLY, Judge.

This case concerns qualification and eligibility for unemployment compensation and is governed by Chapter 288, RSMo 1978. Twelve workers, formerly employed by Uniroyal, Inc., at its Maryville, Missouri, plant, filed claims for unemployment compensation. All claims were denied by deputies of the Division of Employment Security (Division), which denials were affirmed by the Appeals Tribunal. On review by the Labor and Industrial Relations Commission, such determinations were reversed. The circuit court then affirmed the Commission on application for judicial review. The Court of Appeals affirmed the circuit court's judgment affirming the Commission. The cause was then transferred to this Court on certification by a dissenting judge. Mo. Const. art. V, § 10.

The facts are undisputed. Claimants are production employees of Uniroyal, Inc. at its plant in Maryville, Missouri. The plant usually operates with a workforce of approximately 160 employees. In October 1979, Uniroyal determined that for economic reasons it was necessary to eliminate twenty-one positions. Following its usual procedure, it called an employee meeting of all the people in the plant. At that meeting it announced that twenty-one jobs were to be eliminated on a certain date. Company policies regarding layoffs were explained. Uniroyal utilized two policies: the seniority method, by which senior employees whose jobs were to be eliminated were retained by "bumping" those with less seniority; and the volunteer method, by which employees who would not otherwise be laid off were given the opportunity to be considered for the layoff by waiving their seniority rights. The final decision as to who was to be laid off was made by the company, based on its determination of practicality and the effective operation of the plant. The volunteer policy was part of an overall employee relations system, and was considered to allow Uniroyal to make the best of a bad situation. Lists were also presented at the meeting of which jobs were to be eliminated and of those who would be affected if the seniority system were carried out.

A number of the more senior employees did volunteer to be considered for layoff. This appeal involves twelve volunteers chosen by the company, eleven of whom had sufficient seniority to continue working and one of whom was on the original list of 21 to be laid off by the seniority system. All filed an initial claim under Chapter 288, and each expected to collect an amount consisting of state unemployment compensation supplemented by unemployment benefits provided by Uniroyal equalling 75% of their base salary. Their claims were denied by deputies of the Division on one or both of the following grounds: (1) that the claimant had left work voluntarily without good cause attributable to his work or to his employer, or (2) that the claimant was not available for work.

On appeal, the Appeals Tribunal consolidated all twelve claims and held a single hearing on December 17, 1979. Among those testifying were the plant manager and industrial relations manager, both of whom testified on behalf of the claimants regarding, among other things, the purpose of the volunteer policy and the manner in which it was carried out. On January 15, 1980, the Appeals Tribunal issued its decision affirming the determination of the deputies of the Division.

All of the claimants filed timely applications for review with the Commission. The Commission issued its decision on July 23, 1980, reversing the decision of the Appeals Tribunal and finding that each of the claimants was discharged on November 1 or 2, 1979, but not for misconduct connected with his work. The Commission further found that each claimant was available for work. Pertinent portions of the Commission's decision are as follows:

The Commission finds that the employees had no voice as to whether the jobs would be eliminated in the first instance. It is clear the employees had no choice as to which jobs should be eliminated. The fact that some persons would be laid off because these jobs were not available is in no way the fault of any employee. All employees merely had the opportunity, subject to the employer's ultimate decision, to say "choose me, rather than another." Each claimant here volunteered for the layoff and was selected.

One issue to be decided is whether the fact that any one employee agreed to be among those considered for the layoff supports a finding that that person voluntarily quit his job when his employer then chose to lay him off. The other issue is whether such employee is unavailable for work when a job is eliminated by his employer and the claimant volunteers to suffer the consequences of the lack of work. It is clear in this case that the employer decided whether to eliminate a job and whether to lay off a given individual, according to the employer's needs.

The decision of the Appeals Tribunal on both issues is based on the fact that any claimant here could have prevented the employer from choosing him for the layoff by not volunteering to be considered for a layoff. The Appeals Tribunal found that each claimant chose to withdraw from the labor market because each waived his seniority right to stay with this employer and force someone else into a state of unemployment clearly attributable to a decrease in available jobs.

The Commission does not agree, however, that a waiver of one's seniority rights is tantamount to completely withdrawing from the labor market. It is clear no claimant desired to quit his job, apart from the circumstances that twenty-one (21) positions were to be eliminated by the choice of the employer. In light of the employer's supplemental unemployment benefits, it is clear that each claimant here effectively volunteered to sustain a twenty-five percent (25%) reduction in his base pay, as well as a loss of any overtime he may have earned, in order to benefit his employer, and a fellow worker. The Commission draws a compelling inference that each person volunteered to make a sacrifice because he could afford to do so.

These claimants were discharged for a lack of available work with this employer. The Commission entertains no doubt that if the employer had chosen certain employees for layoff without giving those persons any choice in the matter, such individuals would be entitled to unemployment insurance benefits as a result of the discharge by the employer. The fact that each of these claimants is unemployed is no less attributable to the employer's decisions.

Through the Employment Security Law employers share the cost of benefits paid to those who are unemployed "through no fault of their own." The term "unemployment" means lack of employment, a condition which results from the failure of industry to provide employment. Brown v. Labor & Industrial Relations Comm'n., 577 S.W.2d 90, 93 (Mo.App.1978). This employer reduced employment by twenty-one (21) jobs and the benefits should be paid to those consequently laid off. It should not matter which of several employees are sacrificed, nor does it matter that a claimant participated in the decision. The ultimate choice belonged to the employer, and the ultimate responsibility for the unemployment of each of these claimants lies only with the employer's decision to reduce available jobs.

Furthermore, the Commission finds that these claimants are no less available and are no less a part of the State's work force than an employee who had no choice as to whether he would be laid off when a given number of jobs were eliminated, and work was no longer available through this employer. These claimants made an active and earnest search for work and were available for work for this employer or any other if work was available. Availability is a question of fact. It is nowhere defined in the Employment Security Law because of the great number of subtle factors involved. The Commission is the final arbiter on this issue; in its considered judgment of all the factors involved in this case, the Commission can only infer that these persons were available for work.

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* * *

Another public policy is involved here. Although the Appeals Tribunal had no intention of substituting its judgment for that of the employer as to which employees shall be laid off, the effect of the decision of the Appeals Tribunal is nothing less than that. Also, it is clear that the Appeals Tribunal has effectively interfered with this employer's policies which are designed to promote harmonious employer-employee relations. This should be avoided. * * *.

The circuit court affirmed the findings and rulings of the Commission, and the Western District affirmed the circuit court's judgment. We review as if on original appeal. Mo. Const. art. V, § 10.

The Division contends, first, that the Commission's determination that each claimant was not discharged for misconduct connected with his work is not supported by competent and substantial evidence on the record as a whole and is based upon an erroneous interpretation of § 288.050, RSMo 1978. The Division's second point is that the Commission's determination that each claimant was available for work is not supported by the evidence and misinterprets § 288.040.1(2).

The pertinent portion of § 288.050 reads as follows:

Notwithstanding the other provisions of this law a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds

(1) That he has left his work voluntarily without...