Grant Building, Inc. v. Unemployment Compensation Board of Review

Opinion by

Wright, J.,

Andrew A. McGowan was last employed as a janitor by Grant Building, Inc., in the City of Pittsburgh. His final day of work was August 5, 1963. The Bureau of Employment Security granted his application for benefits. The Referee reversed the Bureau’s decision on the ground that claimant was disqualified for wilful misconduct under Section 402(e) of the Unemployment Compensation Law. Act of December 5, 1936, P. L. (1937) 2897, 43 P.S. 751 et seq. The Board of Review affirmed the decision of the Referee, but based claimant’s disqualification on voluntarily leaving work without cause of a necessitous and compelling nature under Section 402(b)(1) of the statute. Claimant then appealed to this court. Upon petition of the Board of Review, we remanded the record for further study and consideration. The Board of Review thereafter vacated its initial decision and substituted a decision allowing benefits. The employer has appealed.

This case has given us considerable concern. It has been argued and reargued. An unusual factual situation is presented. It is really a contest between claimant and Local No. 29, Building Service Employes Union. The employer stands innocently in the middle. Local No. 29, a bona fide union, became the bargaining agent for the employes in 1945. As a part of the agree: ment entered into with the employer, it was necessary for all employes to become members of the union. Claimant was then an employe but was in military service. Upon his return to work he did not join the union. For some unexplained reason, this fact was not ascertained until eighteen years later. The record supports the following pertinent findings by the Board of Review: “4. Claimant was never requested to join the local union until August 5, 1963. 5. The claimant was-given the opportunity to join the union upon a payment of $51.00, which included $15.00 for initiation fee, and dues for the year 1962-1963. 6. The claimant refused to pay the $51.00 and thereby became unemployed”.

The record discloses that, when claimant’s nonunion membership became apparent, the employer interceded with the union on his behalf. Instead of requiring claimant to pay full back dues for eighteen years, the union agreed to afford claimant the opportunity to place himself in good standing for the comparatively nominal sum of $51.00. The Board of Beview reasoned originally that this was a fair adjustment and that, since claimant did not avail himself of the opportunity, “he did not exert reasonable effort to maintain the employer-employee relationship”. The Board’s change of position was based on its interpretation of the' intervening decision of bur Supreme Court in Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A. 2d 906, discussed hereinafter.

Section 402(b)(1) of the statute (43 P.S. 802(b) (1)) provides in pertinent part as follows: “An employe shall be ineligible for compensation for any week . . . (b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . And provided further, That no employe shall he deemed to be ineligible under this subsection where as a condition of continuing in employment such employe would be required to join or remain a member of a company union or to resign from or refrain from joining any bona fide labor organization”. This language was construed by this court in O’Donnell Unemployment Compensation Case, 173 Pa. Superior Ct. 263, 98 A. 2d 406. In that case, we affirmed the denial of benefits to a claimant whose continued employment required maintenance of her union membership in good standing, but whose employment was necessarily discontinued by her employer, in accordance with the collective bargaining agreement, because claimant refused to pay a reinstatement fee of $25.00. As therein stated: “But claimant’s unemployment resulted from her own fault, in that it was incurred entirely through her own procrastination, indifference, and arbitrary attitude. She was responsible for the situation, which could have been reasonably avoided, but which forced her employer to dispense with her services”.

To the same effect is Butler Unemployment Compensation Case, 189 Pa. Superior Ct. 605, 151 A. 2d 843, wherein we affirmed the denial of benefits to a claimant who refused to join a bona fide labor organization with which the employer had a collective bargaining agreement. As stated in that case: “We are now definitely ruling that a claimant who fails or refuses to join or remain a member of a bona fide labor organization, as a condition of continuing in employment under the contract between such organization and employer, does not have a cause of a necessitous and compelling natui’e for leaving his work”. Although the statute has since been amended many times, the legislature has not made any substantial change in the language of the proviso in Section 402(b) (1) here under consideration, or in our interpretation thereof. The intent of the legislature seems clear, namely, that refusal to join a bona fide labor organization will constitute the employe a voluntary quit.

In Gianfelice Unemployment Compensation Case, supra, 396 Pa. 545, 153 A. 2d 906, the Supreme Court reversed the decision of the Superior Court in Gianfelice Unemployment Compensation Case, 186 Pa. Superior Ct. 186, 142 A. 2d 739. We had ruled that Gianfelice was a voluntary quit because he had retired at age 68 under the terms of a plan incorporated in the collective bargaining agreement. The Supreme Court ruled that the provisions of the agreement relating to retirement did not control the employe’s right to unemployment compensation. In holding that Gianfelice did not retire voluntarily, it was expressly stated that Section 701 of the statute (43 P.S. 861) rendered invalid any agreement by an employe to waive or release any of his rights under the Act.

This court thereafter decided Williams Unemployment Compensation Case, 193 Pa. Superior Ct. 320, 164 A. 2d 42, in which the writer concurred only in the re-suit. In that case the employe was laid off for lack of work and placed on a recall list. He was required by the collective bargaining agreement to pay $1.05 monthly tax to the international union. Nonpayment of this tax by the tenth of the month resulted in suspension. However, if payment was made by the thirtieth of the month, automatic reinstatement would follow. Under the by-laws of the local union, on the other hand, to obtain reinstatement a delinquent employe was required to pay a fine equal to fifty hours of pay. The claimant offered to make timely payment of the international tax. It was held that the additional demand of the local union constituted “an outrageous penalty”, and benefits were allowed.

We are not in accord with the ultimate determination of the Board of Review that the instant case is controlled by the Gianfelice and Williams cases. In each of them the employe was a member of a bona fide labor organization and, as such, a party to the collective bargaining agreement. That agreement was held to be invalid so far as it waived or released any of his rights to unemployment compensation. In the case at bar, however, claimant has merely been required to join a bona fide labor organization on reasonable terms. His present difficulty results from his own voluntary failure to comply with this requirement. It is our view that he does not come under the shelter of the statutory proviso. He was not forced to join or remain a member of a company union or to resign from or refrain from joining a bona fide labor organization. As previously indicated, it is significant that the legislature did not include within the protection of the proviso an employe who is required to join a bona fide labor organization.

It is also important to note that the Gianfelice case was recently distinguished, and its impact limited, in Lybarger Unemployment Compensation Case, 418 Pa. 471, 211 A. 2d 463, in which our Supreme Court affirmed the decision of this court in Lybarger Unemployment Compensation Case, 203 Pa. Superior Ct. 336, 201 A. 2d 310. In the Lybaa-ger case claimants were ruled ineligible for voluntarily leaving work although they were required to quit by the terms of the collective bargaining agreement. The Supreme Court held that the Gianfeliee case was not controlling. This is a proper step toward the original position of the Superior Court in the Gianfeliee case. Mr. Justice Roberts made the following pertinent statement: “The use of the word ‘involuntary’ in the declaration of public policy section is enlightening because the Legislature equates that word with the phrase ‘through no fault of their own’ ”. It therefore seems clear that the word “voluntary” is to be equated with the phrase “through the employe’s own fault”. In the case at bar claimant was at fault, as the Board of Review originally held, in refusing to comply with the fair and reasonable adjustment worked out by the employer with the union.

In conclusion, for eighteen years this claimant consistently obtained and accepted all the benefits of the collective bargaining agreement, including a pension which he now enjoys, without ever having paid a single penny into the union treasury. We are of the opinion that he is not entitled to receive unemployment compensation benefits as a consequence of his own refusal to join the union on payment of a reasonable sum for initiation fee and current dues.

Decision reversed.