I am in accord with the statement of facts and comments in the majority opinion except for the last sentence wherein it concludes that "there is some evidence from which it may be inferred that the severance pay was remuneration for the period of unemployment up to August, 1949." The only competent evidence on that subject was the contract between the company and the union.
In two instances the record contains statements which are conclusions drawn by someone from the evidence. *Page 96 In the "local claims examiner's report to the central office," signed by Genevieve Dale and dated March 31, 1949, there is a finding that claimant was to receive severance pay and the report concludes, "evidently not eligible for benefits to 8-26-49." On this report the administrator denied the claim for benefits. The denial was reversed by the board of review.
Attached to the referee's report to the board are two slips referred to and quoted in the majority opinion. One says the severance allowance "was in lieu of continued employment" until August 26, 1949. The other says that claimant had received $99.16 vacation allowance "which is the equivalent of at least full time wages up to and including 3-22-49." While these two slips are with other similar slips which were properly identified as exhibits and are referred to in the record, no marks of identification appear on them and no reference is made to them in the record. Why they were attached to this record is not apparent to me. However, the statements on these slips being mere conclusions, they are not important unless they can be drawn from the terms of the contract.
In my analysis of the relations of the claimant to her employer, the Western Union Telegraph Company, and her compensation or remuneration rights arising thereunder, I see three sources: (1) Her direct and personal contract of employment under which was defined the work she was to do and the remuneration or wages she was to receive; (2) the contract her union made with the employer for the benefit of her and all other employes; and (3) the statutes of Ohio, particularly the Unemployment Compensation Act.
From the first source mentioned claimant became entitled to the weekly wages which she received during the period of her employment.
The contract made by the union with her employer *Page 97 (the second source mentioned) contains many stipulations involving remuneration, among which are a provision for two weeks annual vacation with pay and, under section 23, a provision entitled "Technological Displacements." This provision covers claimant's loss of employment. Under the provision for technological displacement, there were five options available to claimant, one of which was acceptance of severance pay.
This option is defined in the contract as follows:
"Severance pay. Any employee who has, or who will have, two years or more of company service some time during the year in which the conversion is effected may choose to be paid a lump sum separation allowance. The separation allowance shall be determined on the basis of four weeks' pay at the regular rate of the position last occupied, for every year of service, and two days' pay for every month in which the employee worked in any period remaining that is less than a full year. The acceptance by an employee of a lump sum separation allowance under this proviso terminates his service with the company." (Emphasis added.)
There was some quibbling about how claimant was separated from her employment, due to the fact that in her statement electing to take severance pay, which statement was obviously prepared for her by the company, she said she "resigned." There is no question that her separation was involuntary and at the instance of the employer because of lack of work for her.
The real question here is: What was her severance pay for? Was it to relieve the employer, indirectly, for the loss that would accrue to it in contributions to the unemployment compensation fund if benefits were allowed to her under the statute for her period of unemployment following her discharge, or was it meant to compensate for the loss of rights and credits that had *Page 98 accrued to her over the six years and two months of faithful service to her employer?
What did she lose by way of rights and credits?
She lost her seniority rights and accumulated credits under the pension plan which the company, under its contract with the union, provided for its employees. This is made manifest in section 23 of that contract, under which the first option accorded a discharged employee is "acceptance of pension if eligible." Mrs. Krupa was 26 years and 4 months old when discharged and not eligible for the pension.
Both seniority and pension rights have assumed much significance in modern industrial life because such rights are valuable to employees as a part of their way of life. Wages are geared into large industries, such as this company, with such considerations in mind. Six years of this young woman's life were spent working for the Western Union Telegraph Company. When she becomes employed in some other industry her seniority rights and pension credits, if there be such in the industry which employs her, will have to start anew.
To my mind there are some similarities between these credits, particularly the pension rights, in industrial life and the cash surrender value of a policy of a reserve life insurance company.
When by the surrender of the policy the insurer is relieved of obligation to pay the principal sum of the contract, it returns to the insured the reserve built up out of the premiums paid by the insured. So the employer, when relieved of the possible future pension claims of an employee, by the severance pay, returns to him the reserve established for payment of the pension — money which otherwise would have been paid to that employee in wages from week to week, in this case, during a six-year and two-month period. *Page 99
The judgment as it now stands invalidates the advantages of the union contract made for the claimant and other employees. The union contract waives for her her right to benefits under the Unemployment Compensation Act, something she herself could not do, for Section 1345-9, General Code, says: "No agreement by an employee to waive his rights to benefits under this act shall be valid * * *."
Can a union do for a member that which he can not do for himself?
It is urged that if this claimant is permitted to take her severance pay and also receive unemployment benefits she will get double pay for a period. If she were successful in getting employment when her service with the company terminated, it might be equally well reasoned that she should refund her severance pay, otherwise she would be getting double pay and would not need the money. The latter suggestion may sound absurd but is no more so than the argument that the severance pay takes the place of the right to benefits to which she would be entitled except for the credit she had built up with the company and received in severance pay. If that pay were so intended, the contract should so provide. Nowhere in it is that even suggested, and the company does not contend that it is.
It is interesting to note that no decision of any court on this question has been cited by diligent counsel. The boards of review of many states have discussed it and are divided on the answer. Some of these decisions, adverse to the allowance of benefits, have been cited and quoted. Some have been by divided boards and in some the reasoning has been exceedingly labored.
The judgment of the Court of Common Pleas should be reversed and the order of the board affirmed. *Page 100