Berthiaume v. Christgau , 218 Minn. 65 ( 1944 )

¹ Reported in 15 N.W.2d 115. Certiorari to review a decision of the state director of the division of employment and security holding relator ineligible for unemployment compensation.

Relator was first disqualified by a claims deputy of the division on October 15, 1943, for failure to apply for available suitable work as required by Minn. St. 1941, § 268.09(4), (Mason St. 1940 Supp. § 4337-27D), as amended by L. 1943, c. 650, § 5(E). Subsequently, on November 9, 1943, an appeal tribunal of the division set aside the deputy's decision holding relator disqualified because of failure to apply for available suitable work, but held him ineligible to receive benefits under the act on the ground that he had not held himself available for work as provided for by § 268.08(3), (§ 4337-26[C]), as amended by L. 1943, c. 650, § 4(C). On December 31, 1943, the latter determination was affirmed by the director. It is this decision which relator seeks to review.

The question presented for determination is whether relator was properly held ineligible for benefits under the act because he was not available for work within the meaning of L. 1943, c. 650, § 4 (C).

The facts are as follows: Relator by occupation is a boilermaker's helper or journeyman boilermaker. Subsequent to July 5, 1943, he was employed at intervals by the Babcock-Wilcox Company in St. Paul. His wage at about the time in question was $1.70 per hour with time and a half for time over eight hours per day or 40 hours per week.

On October 5, 1943, relator's employment was terminated because of lack of working materials. He was then assured that as soon as material was available he would be reëmployed. On October 11, 1943, he registered for employment and, filed a claim for benefits with the division of employment and security. He thereafter reported his continued unemployment as required by the act. On October 11, 1943, a representative of the U.S. Employment Service requested him to apply for work at the Northwest Terminal Company in Minneapolis as a truck driver, at an hourly wage of 85 cents with time and a half for all hours over 40 per week. Because of his belief that he was shortly to resume work at his regular trade as a journeyman boilermaker, relator refused to accept such employment. Subsequently, on October 18, 1943, he resumed work for the Babcock-Wilcox Company at his usual trade, and there is involved here only his right to benefits for the period between October 5 and October 18, 1943.

It is undisputed that the business agent of relator's union handled all employment and reëmployment of its members, including that of relator, and that prospective employers contacted him when they desired journeymen boilermakers. It is further undisputed that he had assured relator at the time the claim for benefits was filed that he would shortly be called back to work at his regular trade as a journeyman boilermaker. Relator admits that during his unemployment he was waiting for employment to turn up in his regular trade or occupation. It is further undisputed that the union had no difficulty in placing its men, and that the union's business agent had been advised by the Babcock-Wilcox Company that it would shortly thereafter again require relator's services. It is further undisputed that relator's usual work is highly specialized. He is designated as a "high man" and to a great extent must work on beams high in the air, for which special training is required. Because of these facts, it was the customary practice of the union to hold available for this work men trained along this line. For this reason, relator was asked by his union to wait for employment in his own trade. Such work became available on October 18, 1943, about 13 days after the original termination of his employment. The work was directly connected with the national defense effort.

An examination of the record discloses that there is involved in these proceedings an interpretation of two sections of the act, to wit: L. 1943, c. 650, §§ 4 and 5. Insofar as they may be applicable here, these sections provide:

"Sec. 4. An individual shall be eligible to receive benefits with respect to any week of unemployment only if the director finds that:

* * * * *

"C. He was able to work and was available for work in his usual trade or occupation or in any other trade or occupation for which he demonstrates he is reasonably fitted and is actually seeking work;

"Sec. 5. An individual shall be disqualified for benefits:

* * * * *

"E. If the director finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the director or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the director. * * * Suitable work shall be his former employment or any work for which such individual is reasonably fitted and for which work the wages are equal to 125% of the weekly benefit amount for total unemployment.

"(1) In determining whether or not any work is suitable for an individual, the director shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience, his length of unemployment and prospects of securing local work in hiscustomary occupation, and the distance of the available work from his residence." (Italics supplied.)

The claims deputy, in substance, held relator ineligible for benefits under these sections, saying:

"* * * The claimant is held to have failed without good cause to apply for available suitable work for the reason that (1) the claimant has no prospects of work in his regular occupation (2) the job to which he was referred would have paid him the prevailing wage scale and (3) manpower policies permit one to leave one job to accept another at which greater utilization of his skills can be had."

Apparently, because the evidence appeared conclusive that relator had immediate prospects of work in his regular trade, this theory was abandoned by the director on appeal, and a specific finding was made that relator was ineligible under § 4(C) because he was not seeking work except in his own trade, and hence was not available for the other work provided for in said section.

Originally this latter section merely provided that, to be eligible for benefits, a worker must demonstrate that he was able to work and was available for work. § 268.08(3), (§ 4337-26[C]), supra. This section was amended by § 4 (C) of the 1943 act, which added the words "in his usual trade or occupation or in any other trade or occupation for which he demonstrates he is reasonably fitted and is actually seeking work."

Relator contends that the word "or" as used in the amended section implies a choice between the two alternatives expressed therein, and means one or the other thereof, but not both, and that, since he was available for the first alternative specified, namely, "his usual trade or occupation," he was entitled to benefits under the act. Respondent asserts that "or" has a different meaning and should be construed as a conjunctive to mean "and" and that, in order to be eligible for benefits under the act, a claimant must demonstrate that he was available at all times, both for work at his usual trade and in any other trade for which he is reasonably fitted.

Relator points out that if his theory of the meaning of this section is not followed a situation may develop where (1) a claimant by waiting for expected resumption of his regular employment would lose all benefits under the act; or (2) by accepting the substitute employment and continuing therein, lose opportunities for resuming work in his usual trade; or (3) by taking the substitute employment and terminating the same as soon as work in his usual trade becomes available, become subject to the penalties set forth in L. 1943, c. 650, § 5 (A), which provides that an employe who leaves his employment without good cause attributable to his employer is subject to certain disqualifications if he subsequently becomes unemployed.

Respondent, on the other hand, asserts that if the construction urged by relator is given this section a claimant might delay indefinitely his resumption of any suitable employment, under the claim or pretext that he was available only for work in his usual trade (even though there were no prospects thereof), and nevertheless be eligible for benefits under the act.

A close scrutiny of the two sections indicates that they must be considered together to arrive at a logical and sensible result. It is apparent the legislature intended that an individual should not be disqualified for benefits because of his refusal to accept employment in a trade other than his own when there are reasonable prospects of his securing local work in his customary occupation. As indicated, § 5 (E) (1) of the 1943 act provides that, in determining whether any available work is suitable, the director shall first consider the prospects of the applicant's obtaining local work in his customary occupation. Presumably, if there are such prospects, then substitute work offered is not deemed suitable within the meaning of that section.

In the light of such limitation, § 4(C), must be construed to mean that, to be eligible for unemployment benefits, an applicant must be available for work in his usual trade (which of course would be suitable) and, if there are no prospects of employment therein within a reasonable time, also for work in other occupations for which he is reasonably fitted and which is otherwise suitable under § 5(E) (1) of the act. In other words, if an applicant presents sufficient evidence to establish as a fact that there are prospects of returning to work in his own trade within a reasonable time, then work in some other trade for which he should otherwise be available and which would otherwise be deemed suitable becomes unsuitable under the definition thereof above referred to.

On the other hand, should it be determined as a question of fact that a claimant has no prospect of returning to his usual trade within a reasonable time, then work in some other trade for which he is reasonably fitted and which meets the other requirements specified in § 5(E) (1) may become suitable, and the burden falls upon him to establish that he has held himself available therefor, as well as for work in his own trade, under § 4(C). This construction gives effect to the legislative intention and at the same time overcomes the objections and difficulties pointed out by relator and respondent, as above set forth. See, Aslakson v. State Dept. of Highways, 217 Minn. 524,15 N.W.2d 22.

Applying this doctrine to the instant case, since the evidence here is undisputed that there was a good prospect of relator's resuming work in his regular trade within a short time, a fact corroborated by his actual return thereto within two weeks, it follows that work in some other trade or occupation became unsuitable under the definition of "suitable work" in § 5(E) of the act, and the fact that relator was not available for such unsuitable work did not render him ineligible for unemployment benefits under the act.

Reversed.