Reynolds Metals Co. v. Thorne

• Decision Date: 30 May 1961
• Docket Number: 8 Div. 738
• Citation: 133 So.2d 709,41 Ala.App. 331
• Parties: REYNOLDS METALS COMPANY v. Mabel S. THORNE, Adm'x.
• Court: Alabama Court of Appeals

Page 709

133 So.2d 709

41 Ala.App. 331

REYNOLDS METALS COMPANY v. Mabel S. THORNE, Adm'x.

8 Div. 738.

Court of Appeals of Alabama.

May 30, 1961.

Rehearing Denied June 30, 1961.

Clopper Almon and Vincent McAlister, Sheffield, for appellant.

Cooper, Mitch, Black & Crawford, Birmingham, for appellee.

PRICE, Judge.

This is an appeal from a judgment of the circuit court awarding claimant benefits in an unemployment compensation case.

Claimant was allowed compensation by claims examiner and the appeals referee. On appeal by the employer to the Board of Appeals claimant was held to be disqualified for benefits. He appealed to the circuit court, which ruled in his favor. This appeal by the employer followed.

Charles C. Thorne died after the appeal was taken. An order of revivor substituted his widow, Mabel S. Thorne, as administratrix of his estate. Sec. 808, Title 7, Code 1940; Smith v. Wilder, 270 Ala. 637, 120 So.2d 871.

The claimant, Charles C. Thorne, was employed continuously by Reynolds Metals Company since 1945. On August 1, 1956, a collective bargaining agreement was entered into by the employer and The International Union of Operating Engineers, Local No. 320, of which claimant was a member.

A pension plan was incorporated in the collective bargaining agreement, the pertinent provisions of which are as follows:

'(1) Any employee who on or after the effective date of the pension provisions shall have had at least 60 calendar quarters of service and shall have attained the age of 65 years, and who at the time of his retirement shall be in a bargaining unit specified in any Labor Agreement which incorporates this plan by reference, may retire at any time thereafter and shall be entitled to receive a pension upon his retirement.

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'(4) Every employee who attains at least 65 years of age and is eligible for either (a) any old age benefits under the Social Security Act or (b) retirement under this Pension Plan shall be required to retire on his 65th birthday or (if he is not then eligible for either (a) or (b) above) on such subsequent date as he first becomes eligible for either (a) or (b) above unless both the Company and the Union agree that such employee may continue working instead of retiring. Any consent given by either the Company or the Union to allow any employee to continue working instead of retiring as required above, may be subsequently withdrawn at any time and in case of withdrawal of such consent such employee shall be required to retire as of thirty (30) days after such consent is withdrawn.'

The employee testified that on Sunday preceding February 27, 1959, he was informed by the company supervisor that he must 'clear out' on the 27th, and on the afternoon of the 27th his card was taken and 'they carried me up to the main guard entrance and told me to clear out;' that he had insisted that he wished to continue at his work, but had not been allowed to do so.

The union agreed that claimant could continue to work, instead of retiring. The employer insisted that he retire.

Claimant had not worked the required sixty quarters, or fifteen years, so as to qualify him for a pension. Presumably, since he had reached the age of sixty-five years, he was eligible for social security benefits.

The question presented on this appeal is whether an employee who is retired pursuant to the terms of a collective bargaining agreement between his employer and the union of which the employee is a member, despite the fact that he wishes to continue at his work, has 'left his employment voluntarily without good cause connected with such work.' Section 214, subd. B, Title 26, Code of Alabama 1940.

It is appellant's contention that claimant has terminated his employment voluntarily and is therefore not entitled to unemployment benefits.

Appellee insists that the pension plan involved here did not provide for compulsory retirement at age 65, but provided an option in both the employer and the union to permit an employee to continue in his employment after reaching retirement age. The union exercised its option; the employer refused to do so. 'Therefore, the sole operative fact that caused this claimant to become unemployed was the act of the employer in refusing to exercise its option.'

This is a case of first impression in Alabama. In four other states the highest court of the state has passed upon the question involved here. The cases in other states are divided. They are: Campbell Soup Co. v. Board of Review, 13 N.J. 431, 100 A.2d 287; Warner Company v. Unemployment Board of Review, 396 Pa. 545, 153 A.2d 906; Bergseth v. Zinsmaster Baking Co., 252 Minn. 63, 89 N.W.2d 172; Lamont v. Director of Employment Security, 337 Mass. 328, 149 N.E.2d 372.

Appellant cites and relies principally upon the following cases: Bergseth v. Zinsmaster Baking Co., supra and Lamont v. Director of Employment Security, supra.

In the Bergseth case the question was 'whether an individual, who is automatically retired from her employment under the terms of a collective-bargaining agreement between her employer and her union, is entitled to receive unemployment benefits.' [252 Minn. 63, 89 N.W.2d 173.]

The court held that the claimants were disqualified for benefits, concluding that 'these separations were without good cause attributable to the employer because they resulted from circumstances about which the employer could do nothing and which were solely within the control of the employee. The separations were voluntary because they resulted from the acts of duly selected bargaining agents. 'Their acts were his (the employee's) acts.''

The court expressly repudiated the reasoning of the New Jersey court in the Campbell Soup Co. case, stating 'rather we concur in the views expressed by the appellate division of the superior court of that state since we believe they are based upon sounder logic. '* * * (B)y being a member of the union he (claimant) ratified or joined in any of the decisions of the union and must be bound by them.''

In the Lamont case the court stated:

'The issue is whether termination of employment on the ground of age pursuant to a pension agreement between the employer and the union, the collective bargaining agent of the employees, was a leaving of work 'without good cause attributable to the employing unit or its agent' * * *

'* * * 'The claimants, all of whom were sixty-nine (69) years of age or over, retired pursuant to the provisions of the contract.' Some claimants had no desire to retire.

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'* * * Out immediate concern is whether employees who disapprove of an agreement as to retirement made by their bargaining agent and state that they nevertheless wish to continue to work have left their work 'without good cause attributable to the employing unit.'' [337 Mass. 328, 149 N.E.2d 373.]

The court quoted with approval from the decision of the board of review, as follows:

'An agreement arrived at by an employing unit with the union as bargaining agent for its employees binds the employees as if each individual employee had entered into a contract directly with his employer. * * * There was no reservation for any individual deviation from its terms. The claimants, themselves, speaking through their union, agreed that upon reaching a certain age they would leave their employment. They become unemployed because of their own contract providing for retirement. Such leaving of employment is not good cause attributable to the employing unit or its agent.'

Appellant also directs our attention to two unpublished opinions, copies of which are filed as exhibits to appellant's brief, where the courts held that claimants were not entitled to benefits.

Appellee relies principally upon Campbell Soup Co. v. Board of Review, supra, and Warner Company v. Unemployment Comp. Board of Review, supra.

In the Campbell Soup Company case, in an opinion written by Judge Brennan (now a Justice of the Supreme Court of the United States) the New Jersey Supreme Court found that claimant left his employment involuntarily and that he was eligible for benefits. The court observed:

'If the inquiry is isolated to the time of termination, plainly none of the claimants left voluntarily in the sense that on his own he willed and intended at the time to leave his job. On the contrary, each claimant resisted his termination and left against his will only upon his employer's insistence that the contract obligation gave neither of them any alternative but to sever the relationship.

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'The Legislature plainly intended that the reach of the subsection was to be limited to separations where...