Johnston v. Chrysler Corporation

Terry, President Judge

(dissenting).

The disqualifications, if any, on the part of the claimant to receive unemployment compensation benefits must be determined by construing the pertinent provisions of Sections 3314 and 3315 of Chapter 33, Title 19 of the Delaware Code in the light of the record now before this Court.

The pertinent provisions of said sections are as follows:

Ҥ 3314. Eligibility for benefits
“An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that he—
“(1) Has registered for work at, and thereafter continued to report at, an employment office in accordance with such regulations as the Commission prescribes, except that the Commission may, by regulation, waive or alter either or both of the requirements of this subdivision as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which it finds that compliance with such requirements would be oppressive, or would be inconsistent with the purpose of this chapter, but no such regulation shall conflict with section 3312 of this title;
“(2) Has made a claim for benefits with respect to such week in accordance with such regulations as the Commission prescribes;
“(3) Is able to work, and is available for work, and is actively seeking work; * * *.
Ҥ 3315. Disqualifications for benefits
*291“An individual shall be disqualified for benefits—
“* * * (3) If he has refused to accept an offer of work for which he is reasonably fitted, or has refused to accept a referral to a job opportunity when directed to do so by a local employment office of this State or another State * * *.”

The claimant in this case commenced his employment with Chrysler Corporation as an Inspector, at its Tank Defense Plant in Newark, Delaware, on October 25, 1957. His employment was uninterruptéd until September 28, 1960, at which time it was terminated due solely to the closing down of the plant.

The claimant filed his application for unemployment compensation on September 29, 1960, and thereafter for a few days endeavored, without avail, to obtain employment in the Newark, Delaware area. Not from choice, but because of financial necessity, he moved to and became a resident of Berwick, Pennsylvania, the home of his parents, a distance of 130 miles from Newark, Delaware.

The claimant was able to work, he was available for work, and actively sought work in the area of his Pennsylvania residence, as evidenced by an uncontradicted portion of the record disclosing that he personally applied to fourteen different employers for any type of work in that área from October 5, 1960 to October 26, I960.1

*292On October 18, 1960, Chrysler corporation sent to the claimant the following notice: “Report to Employment Office for interview at 9:30 A.M. Tuesday, October 18, 1960. Please bring Social Security card and this card with you.” The claimant did not report to Newark, Delaware for the suggested interview for several reasons, two of which are important:

(1) That he resided at the time 130 miles from Newark, Delaware, and

(2) That the notice sent to him was but an invitation to be interviewed for work (not an offer of work for which he was reasonably fitted). Section 3315(3).

The Superior Court, in affirming the Unemployment Compensation Board, held that Chrysler’s notice to the claimant “To report to the Employment Office for an interview” was tantamount to an offer of work and since claimant refused to report to be interviewed, that he had refused to accept an “offer of work for which he was reasonably fitted” and thus concluded that he was disqualified from benefits under Section 3315(3).

The majority in affirming the court below assumes without deciding that the claimant is eligible for unemployment benefits under 19 Del. C. § 3315 (3). Their opinion indicates, however, that they have some doubt as to whether or not the claimant was “actively seeking work” as required by said section. They state as follows:

“We are not so clear that the claimant’s refusal to come to Newark for the purpose of interview knowing that it would result in the offer of a job might not be argued to be an indication that claimant has not satisfied the requirements of 19 Del. C., Sec. 3314(3) that he be ‘actively seeking work’.”

I find no logic in the doubt expressed by the majority, especially in the light of the uncontradicted portion of the record revealing the claimant’s activities in seeking any type *293of employment, first, in the Newark, Delaware area, and then in the area to which he moved, Berwick, Pennsylvania. These facts conclusively establish that the claimant was “actively seeking work.”

The doubt expressed by the majority is due to a refusal to recognize that the permanent residence of the claimant is Berwick, Pennsylvania, not Newark, Delaware, and that his employment terminated with Chrysler September 28, 1960.

The Chrysler Tank Plant at Newark, Delaware remains closed, and if the claimant had responded to the notice for interview, it would, of necessity, have had to relate to the possibility of employment in another division of the corporation, and whether or not an acceptable offer of employment would have followed if the claimant had responded falls clearly within the field of speculation and conjecture.

Would the claimant be ineligible for benefits if he failed to report to a notice for an interview from duPont Company or General Motors in Wilmington, Delaware, approximately 130 miles from his residence, or some other corporation, let us say, located in Baltimore or New York City? I do not believe so, and the Legislature never so intended in enacting the Unemployment Statute.

I find no duty whatsoever under the Act for any employee to be available for work in any particular place. Ashmore v. Unemployment Compensation Commission, 7 Terry 565, 86 A. 2d 751. In that case the Superior Court of this State held:

“Moreover, there is no requirement in the Unemployment Compensation Act that a claimant must be available for work in the locality in which he last worked or resided or in any other particular place. Nor is there any requirement that he must be available for his usual type of work. The fact that a claimant has moved from one locality to another does not form a basis for holding him unavailable *294for work even if it appears that his chances for employment would have been better if he had remained in his former locality.”

It is my conclusion that the claimant was actively seeking employment within the terms of the eligibility requirements of Sec. 3315(3).

Now, the substantive question: Should the Court below be affirmed in its conclusion that Chrysler’s notice to the claimant to appear at its employment office at Newark, Delaware, for an interview, was tantamount to an offer of work for which he was reasonably fitted? Sec. 3315(3).

It seems to be unrealistic for anyone to consider that the meager notice sent by Chrysler to the claimant constituted an offer of work for which he was reasonably fitted as contemplated by the statute. How could claimant know he was reasonably fitted for the work since no work was offered? The most that can be made of the notice is to call it a notice for interview.

A case directly in point is Muncie Foundry Division of Borg-Warner Corporation v. Review Board, 114 Ind. App. 475, 51 N. E. 2d 891 (1943). In that case, the plant where claimant was employed was sold and the purchaser posted the following notice:

“This office will be open Monday next week, December 28th, through December 31st, to receive applications for employment.” Supra at 892.

Claimant filed a claim for Unemployment Compensation. It was argued that claimant should be disqualified for benefits since the offer to submit an application was tantamount to an offer of work.

In affirming the Board’s award of compensation, the Court commented:

*295“The mere offer of the opportunity to file an application for work with possibility of acceptance of the application and the possibility of work to follow such acceptance does not amount to an offer of suitable work.”

No “offer of work” within the plain meaning of Sec. 3315(3) was tendered by Chrysler to the claimant herein. To hold otherwise, as did the court below, has the effect of rewriting the disqualification provisions of the section to include a further disqualification, “a failure to report for a notice of interview directed by one other than the Compensation Commission.” That such was never intended, is abundantly clear from the language employed under Sec. 3315(3), i.e., a claimant may be disqualified for benefits if he has refused an offer of work tendered by one other than a State Employment Office, but he may be similarly disqualified if he has refused to accept a referral to a job opportunity when directed to do so by a State Employment Office.

The notice given to claimant herein is more akin to a referral to a job opportunity, and as stated in said section, it must be given by a State Employment Office.

The majority concede that “on its face * * * the notice is nothing more than a direction to the claimant to report to Chrysler’s employment office for interview.”

And furthermore that “* * * alone, the notice did not in a legal sense constitute an ‘offer of work’.”

But in some undefined “general or broad sense” they “think” the notice was an “offer of work”.

The crutch which the majority uses to reach their conclusion is, the existence of a collective bargaining contract between Chrysler and the United Automobile Workers of which the claimant was a member. It is somewhat surprising that this contract, on which the majority opinion leans so heavily, is not a part of the record in this case. The majority, *296however, solves this dilemma by finding the collective bargaining contract a proper subject for judicial notice. And they add that “It is immaterial for purposes of this appeal what the precise provisions were”.

The existence of a collective bargaining contract does not change this case at all. If the contract provided that recalls were to be initiated by notice to report to the employment office for interviews and such a provision was shown in the record, this case would be entirely different. Such a contract provision might fill the gap in the reasoning by the majority. But it does no good to recognize the existence of the contract unless “precise provisions” of that contract can support the contentions that a “notice for interview” was “an offer of work”.

The majority does not confine its attention to the narrow legal question before us. They include in their opinion a certain discussion of the practicalities of running a modern industry. I do not understand why this Court in ruling on an unambiguous notice in conjunction with the text of an unambiguous statute should enter the realm of business policy. The majority’s position in this respect paves the way for turning Sec. 3315(3) into an employer’s windfall. For example, if an employer has 25 job openings he could send out 100 vague interview notices to former employees. If 50 former employees came to the interview 25 would be hired and the 50 who did not come to the interview would be found off unemployment compensation. Thus, for an investment of 25 jobs an employer would be able to remove 75 people from its unemployment accountability.

In the present case the majority has taken judicial notice of the facts in Jewell v. Stetser, 174 A. 2d 31 (Del. Super. 1961). That case involved a former employee of Chrysler who was mailed a notice for interview at the same time as the claimant in the case at bar. The record in that case has not been made a part of the record in this case. *297However, the opinion in the Jewel case states that Chrysler’s representative testified that ten per cent more notices were sent than there were job openings. Thus, in this case Chrysler admittedly sent out more notices than it had job openings, which nullifies the majority’s conclusion that the claimant would have been offered work had he responded for the interview.

Since no offer of work was given to claimant by Chrysler, he should not be disqualified for benefits under said section.

The judgment below should be reversed.

1. Berwick A. C. & F. Co., Berwick, Pa.

2. Wise Potato Chip Co., Berwick, Pa.

3. Bana Cigar Corp., Berwick, Pa.

4. Pepsi Cola Bottling Co., Berwick, Pa.

5. Krugs Lumber Yard, Berwick, Pa.

6. Montgomery Ward, Berwick, Pa.

7. Summit Feed Mills, Berwick, Pa.

8. Naugle Lumber Yard, Berwick, Pa.

9. Johnson Chevrolet, Inc., Berwick, Pa.

10. Carmans Department Store, Berwick, Pa.

11. — Bakery, Berwick, Pa.

12. Magee Carpet Co., Nescopeck, Pa.

13. ' Chrysler Defense Plant, Eynon, Pa.

14. Zeiser Vault Co., Nescopeck, Pa.