Sinai Hosp. of Baltimore, Inc. v. Department of Employment and Training

• Decision Date: 01 September 1986
• Docket Number: No. 109,109
• Citation: 522 A.2d 382,309 Md. 28
• Parties: SINAI HOSPITAL OF BALTIMORE, INC. v. DEPARTMENT OF EMPLOYMENT AND TRAINING, et al. ,
• Court: Maryland Court of Appeals

Page 28

309 Md. 28

522 A.2d 382

SINAI HOSPITAL OF BALTIMORE, INC. v. DEPARTMENT OF EMPLOYMENT AND TRAINING, et al.

No. 109, Sept. Term, 1986.

Court of Appeals of Maryland.

March 23, 1987.

Leonard E. Cohen (Frances E. Kanterman and Frank, Bernstein, Conaway & Goldman, on the brief), Baltimore, for appellant.

Amy S. Scherr, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for part of appellee Dept. of Employment & Training.

Keith Zimmerman (Stephen W. Godoff and Godoff & Zimmerman, on the brief), Baltimore, for other appellee.

Argued before ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ., and CHARLES E. ORTH, JR., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

ADKINS, Judge.

We are asked to decide

1. Whether striking workers, permanently replaced during the strike, are disqualified from receiving unemployment compensation benefits under Art. 95A, § 6(a) of the Code on the ground that they have left their employment voluntarily without good cause; and

2. Whether those workers are disqualified under § 6(d) because they refused their employer's offer to return to their pre-strike jobs, although the job offer was made before the workers had filed claims for unemployment compensation.

A special examiner of the appellee Department of Employment and Training (DET), that department's Board of Appeals, and the Circuit Court for Baltimore City, all concluded that the workers were not disqualified. We agree and affirm the judgment of the circuit court.

Facts

On 1 December 1984 the collective bargaining agreement between appellant, Sinai Hospital of Baltimore, Inc. (Sinai), and District 1199E, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO (the Union), expired according to its terms. The expiration was preceded by a series of negotiations between Sinai and the Union and also by a 23 November notice from the Union to Sinai that the former intended to call a strike on 4 December. Sinai responded by sending notices to its employee Union members telling them, among other things, that if they honored the call to strike, they could be permanently replaced. Among those to whom this information was sent were the approximately 43 individual appellees (Claimants) who are parties to this appeal.

The strike began on 4 December. The next day Sinai sent mailgrams to all strikers, including the Claimants, advising that their current jobs were available, and requesting them to return to those jobs "immediately." The strikers were warned "[i]f you do not return, you will not be eligible for unemployment benefits under Maryland law." On 7 December Sinai sent notices to the strikers, including the Claimants, that on 11 December it would "begin to hire permanent replacements for strikers who have not returned to work by that date." These notices further explained:

"A permanent replacement hired to do your job will not be fired to permit you to return to work. You will not be able to use your seniority to bump your replacement, either.

"If there is a vacant job, you and other strikers will be considered for it, if qualified. If there is no vacant job you can do, you will not be able to return to work at Sinai."

None of the Claimants accepted this invitation. By noon on 11 December all of them were permanently replaced. The strike ended late that same day when the Union ratified a new contract with Sinai. During the brief strike, Sinai continued to operate; there was no "stoppage of work" within the meaning of Art. 95A, § 6(e).

After the termination of the strike, the Claimants, then without jobs, filed for unemployment compensation benefits. Sinai opposed their claims, contending that they had voluntarily quit their jobs, thus producing a disqualification under § 6(a), and that they had refused an offer of suitable employment, thus producing a disqualification under § 6(d). When those arguments were rejected, first administratively and then judicially, Sinai renewed them here, after we issued a writ of certiorari while the case was pending in the Court of Special Appeals. 307 Md. 754, 517 A.2d 102 (1986).

Voluntarily Leaving Work--Art. 95A, § 6(a)

Article 95A, § 6 in pertinent part provides:

"An individual shall be disqualified for benefits:

(a) If the [Secretary ¹ finds that the individual's unemployment is due to his leaving work voluntarily without good cause. Only a cause which is directly attributable to, arising from, or connected with the conditions of employment or actions of the employer may be considered good cause. The individual's disqualification shall be effective for the week in which the unemployment began and shall continue (1) for not less than 4 nor more than 9 weeks immediately thereafter, according to the seriousness of valid circumstances as determined in each case by the [Secretary] or (2) until the individual has become reemployed and has earnings in insured work equal to at least ten times his weekly benefit amount. Leaving work to become self-employed, to accompany or join one's spouse in a new locality, or to attend an educational institution is neither good cause nor a valid circumstance for voluntarily leaving work. Only a substantial cause which is directly attributable to, arising from, or connected with the conditions of employment or actions of the employer, or another cause of such a necessitous or compelling nature that the individual had no reasonable alternative other than to leave the employment may be considered a valid circumstance...."

Sinai asserts that subsection (a) disqualifies the Claimants because when they did not return to work after being warned they would be permanently replaced (and thus lose their jobs), they voluntarily terminated their employment with the hospital. It argues that the Claimants abandoned their employment by pursuing a course of conduct which resulted in the severance of them from their employment--a constructive voluntary leaving.

Whether the doctrine of constructive voluntary leaving is recognized in Maryland has not been decided by this Court. In Allen v. Core City Target Y. Program, 275 Md. 69, 82-83, 338 A.2d 237, 245-246 (1975), we assumed the doctrine might be "applicable under appropriate circumstances" but held that the facts in that case did "not bring it within that doctrine." Nor did we adopt the doctrine in Md. Emp. Sec. Bd. v. Poorbaugh, 195 Md. 197, 72 A.2d 753 (1950). There the claimant left his job because he did not like working in cold weather, and failed to return for some four months after the employer had invited him to do so or face loss of his job. We held, under those circumstances, that Poorbaugh had voluntarily left work without good cause. In any event, the facts in both Allen and Poorbaugh are totally different from those before us here--most notably because neither of those cases involved a labor dispute.

In Allen, we concluded that the phrase "due to leaving work voluntarily" has "a plain, definite and sensible meaning, free of ambiguity; it expresses a clear legislative intent that to disqualify a claimant from benefits the evidence must establish that the claimant, by his or her own choice, intentionally, of his or her own free will, terminated the employment." 275 Md. at 79, 338 A.2d at 243. Quoting from Webster's New International Dictionary of the English Language (2d ed. 1974), Black's Law Dictionary (Rev. 4th ed. 1968), and Webster's Seventh New Collegiate Dictionary (1967), respectively, we noted that "voluntary" is defined as:

"1. Proceeding from the will, or from one's own choice or full consent; produced in or by an act of choice.... 2. Unconstrained by interference, unimpelled by another's influence; spontaneous; acting of oneself; free.... 3.a. Done by design or intention; intentional; purposed; intended, not accidental ... b. Made or given of one's own free will...."

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"Done by design or intention, intentional, purposed, intended or not accidental ... intentionally and without coercion."

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"[Done] of one's own free will."

We note that in this case the special referee found as a fact (and this factual finding was accepted by the Board of Appeals) that "at the time the claimants separated from their employment they did not do so with any intention other than to obtain a satisfactory collective bargaining agreement." Indeed, many courts have indicated that a labor dispute does not produce the kind of severance of the employment relationship that is contemplated by the "voluntary leaving" provision of subsection (a). As the Supreme Court of Hawaii reasoned:

"... [T]he terms 'leaving work' or 'left his work' as used in unemployment compensation laws refer only to a severance of the employment relation and do not include a temporary interruption in the performance of services. Kempfer, Disqualification for Voluntary Leaving and Misconduct, 55 Yale Law Journal 147, 154. Absence from the job is not a leaving of work where the worker intends merely a temporary interruption in the employment and not a severance of the employment relation. Such is the case of strikers who have temporarily interrupted their employment because of a labor dispute. Under the prevailing view, they have not been deemed to have terminated the employment relationship and the voluntary leaving disqualification has no application to them."

Inter-Island Resorts, Ltd. v. Akahane, 46 Haw. 140, 158, 377 P.2d 715, 725 (1962) (permanently replaced strikers not disqualified from benefits). See also T.R. Miller Mill Company v. Johns, 261 Ala. 615, 75 So.2d 675, 680 (1954); Mark Hopkins, Inc. v. Cal. Emp. Comm., 24 Cal.2d 744, 748-749, 151 P.2d 229, 231 (1944); Coates v. Bingham Mechanical & Metal Products, Inc., 96 Idaho 606, 607, 533 P.2d 595, 596 (1975); Knight-Morley Corp. v. Mich. Emp. Sec. Comm., 352 Mich. 331, 336, 89 N.W.2d 541, 544 (1958); Producer's Produce Co. v. Indust. Comm., 365 Mo. 996, 291 S.W.2d 166, 177 ...