Johns v. SH Kress & Company

McQUADE, Justice,

with whom PORTER, Justice, concurs (dissenting).

This is a case of first impression, there being no cases cited upon which to base a conclusion.

This matter arose upon a claim for unemployment compensation based upon the following facts: The said claimant and respondent had been employed by the S. H. Kress Company, Boise, Idaho, for a period of 16 months prior to the twenty-first or twenty-second day of December, 1955. On this approximate date the manager of the company, Mr. Osborne, held a meeting of all employees, and at that meeting Mr. Osborne stated he wanted all employees to work on December 26, the Monday after Christmas. There was some testimony about the fact that Mrs. Johns told another employee she didn’t intend to work the twenty-sixth of December, 1955.

There is also testimony in the record about a Mrs. Walters who requested time off on that particular day, and Mr. Osborne refused to let Mrs. Walters off. Mrs. Johns stated in the testimony that she heard the request of Mrs. Walters and felt that her request to be absent on the day of the twenty-sixth of December, 1955, *549would not have been granted. Thereafter Mrs. Johns failed to show up for work on the twenty-sixth of December, stating as her reason that she had her grandmother from Gooding who was going to come for Christmas dinner on that day, her grandmother having been invited on Thanksgiving day of that year.

December 26, 1955, had been proclaimed a legal holiday by the governor of the State of Idaho. The proclamation reads as follows:

“Executive Department
“State of Idaho
“Boise
“Proclamation
“Whereas, Christmas Day, December 25, 1955, and New Year’s Day, January 1, 1956, occur on Sundays,
“Now, therefore, I, Robert E. Smylie, Governor of the State of Idaho, by the power in me vested do hereby declare Monday, December 26, 1955, and Monday, January 2, 1956, as legal holidays in the state of Idaho. * * * ”

As an added inducement for employees to work on this particular day, they were paid double time plus an additional hour off for lunch. It was stated by Mr. Osborne that it had been the practice for 15 years in this locality in that store to work the day following Christmas, and that many other stores in the area of Boise, Idaho, worked their employees on the same day, all for the purpose of clearing up and putting away the Christmas merchandise and preparing the store for the normal course of business and inventory. The contract of employment does not appear in the record. The only basis upon which the appellant relies is the reputed custom, which is discussed later in this dissent.

The Employment Security Agency denied the claim, on the ground and for the reason that Mrs. Johns voluntarily left her employment for domestic reasons, and in accordance with the statutory provisions as follows, and was not entitled to compensation.

Idaho Code, § 72-1366:

“Personal eligibility conditions.— The personal eligibility conditions of a benefit claimant are that—
* * * * * *
“(c) With respect to a female claimant, her unemployment is not due to having voluntarily left work to marry, or to perform the customary duties of a housewife, or to leave the locale to live with her husband. The ineligibility of such person shall continue until she has demonstrated her desire to work and availability for work. The provisions of this subsection shall not apply after a change in conditions whereby she has become *550the main support of herself or her immediate family.
‡ # * H4 *
“(f) His unemployment is not due to the fact that he left his employment voluntarily without good cause, or that he was discharged for misconduct in connection with his employment; provided, that if a person becomes ineligible for benefits by application of this subsection his ineligibility shall continue until he has demonstrated his desire to work and availability for work by—
“(1) having obtained bona fide work and been paid wages therefor for a period of not less than thirty days. * h= * ”

This ruling was appealed to the Industrial Accident Board and reversed. The Industrial Accident Board took the view that December 26 was a legal holiday, and Mrs. Johns was not required to work on that particular day, and her failure to appear that day was not voluntarily leaving her employment, nor was it misconduct. Rather, Mrs. Johns was discharged without legal reason by the employer.

The mere statement by Mr. Osborne that all employees were to work December 26 did not in and of itself constitute a contractual relationship with Mrs. Johns. Mr. Osborne, at the meeting of all employees, directed them to appear for work on the twenty-sixth day of December, 195S. Mrs. Johns was not obligated by the terms of her employment to work on a legal holiday. The nature of her employment and the nature of the type of business of S. H. Kress and Company was not such as required employees to work seven days per week, 30 days per month, but rather it is the usual type of business conducted in most communities, having due regard for Sundays and holidays. The record fails to show that any similar businesses were open to the public on December 26. It appears from the record that the prior manager for S. H. Kress and Company, Mr. Parsons, had not made such a hard and fast rule as did Mr. Osborne. Under Mr. Parsons, those employees who did not appear for work on such a day had not been discharged from their employment. Therefore, this is the first time such a rule was made, and was not the custom for the store.

It further appears from the record this is the only complaint the manager of S. H. Kress and Company had against Mrs. Johns, and it appears contrary to the meaning of the “liberal construction” of the Unemployment Compensation Act1 that a person should be placed in the category of voluntary unemployment as provided by the Act because of one particular offense which the employer might complain of. However, the writer does not concede that *551the employer had any right to claim that Mrs. Johns committed any offense. She was entitled to the day off as a legal holiday set aside by the governor, the authority being Idaho Code, § 73-108:

“Holidays enumerated. — Holidays, within the meaning of these compiled laws, are:
******
“Every day appointed by the President of the United States, or by the governor of this State, for a public fast, thanksgiving, or holiday.”

As Webster says, a holiday is:

“A religious festival; a day set apart for commemorating some important event in history; a day of exemption from labor.”

I.C. § 73-110 provides:

“Computation of time — Obligations maturing on holidays. — -Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.”

It appears the purpose of a legal holiday is to suspend work. Only by offering the inducement of double pay and an extra hour off for lunch had the prior store managers secured the services of employees on Sundays and holidays. This would then be voluntary labor for duties in addition to regular working days. Mr. Osborne, in his attempt to force Mrs. Johns to work on that day, the twenty-sixth day of December, 1955, was operating contrary to public policy and the public welfare.

The action of the Industrial Accident Board conforms to the intent and purposes of the Employment Security Law as set forth in I.C. § 72-1302:

“Declaration of state public policy. —(a) As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this state. Involuntary unemployment is therefore a subject of national and state interest and concern which requires appropriate action to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. Ths can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of un*552employment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that, in its considered judgment, the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, and for the compulsory setting aside of unemployment reserves to be used for the benefits of persons unemployed through no fault of their own.
“(b) This law is enacted for the purpose of securing for this state the maximum benefits of the Act of Congress, approved August 14, 1935, known as the ‘Social Security Act,’ as amended, and to enable the workmen of Idaho to benefit from the provisions of said act.”

It may be clearly seen that this Act is not intended for a period of national emergency, but is designed for each individual family and member thereof. The purpose is to prevent a family or series of families from suffering because of involuntary unemployment. The Act in effect, in this declaration of policy, respects and honors all those who must expend their labor to secure a livelihood, and that the economy of the country is affected either favorably or adversely according to the labors of its people.

It is to be thoughtfully considered that this employee did not voluntarily leave her work to perform the customary duties of a housewife, nor was she guilty of any misconduct, but rather was exercising a statutory right given to her to suspend labor for that day because it had been designated a holiday by the governor of the State of Idaho.

The discussion of the facts with other employees had nothing to do with rights of Mrs. Johns. She was either entitled to the holiday or not. In the absence of a positive showing by the employer as to either an express or implied contract of employment requiring employees to work on legal holidays, the claimant is entitled to compensation.

The award should be affirmed.

. Hagaclone v. Kirkpatrick, 66 Idafio 55, 154 P.2d 181.