Summary
In Dentici v. Industrial Comm. (1953), 264 Wis. 181, 58 N.W.2d 717, when Dentici refused such a transfer we held that in so doing he terminated his employment voluntarily without good cause attributable to his employer.
Summary of this case from Roberts v. Industrial CommOpinion
May 5, 1953 —
June 2, 1953.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Reversed.
For the appellant Industrial Commission there was a brief by Austin T. Thorson and Arnold J. Spencer, both of Madison, and oral argument by Mr. Thorson.
For the appellant Kearney Trecker Corporation there was a brief by Lamfrom, Tighe, Engelhard Peck, attorneys, and Leon B. Lamfrom of counsel, all of Milwaukee, and oral argument by Mr. Lamfrom.
For the respondent there was a brief and oral argument by Max Raskin of Milwaukee.
Action commenced on August 28, 1952, by Joseph Dentici against Kearney Trecker Corporation and Industrial Commission of Wisconsin, to review a decision of the Industrial Commission denying unemployment benefits to plaintiff.
The nature of the case warrants a rather detailed recital of the evidence and the proceedings. Joseph Dentici, claimant, was employed in the assembly department of the Kearney Trecker Corporation almost continuously from February, 1940, to March 2, 1944. On February 29, 1944, claimant was notified that he was to be transferred out of the assembly department into the machine department. He refused to accept such transfer, insisted that he was not "quitting," and demanded that he be allowed to continue at his old job. The employer refused to permit claimant to continue in the assembly department and advised him that his refusal to accept the work in the machine department constituted a quitting. Claimant's employment therefore terminated, and subsequently he filed a claim for unemployment benefits under ch. 108 of the statutes of 1943.
The matter was investigated by a district examiner of the unemployment compensation department, and an initial determination held the claim valid. The employer objected to the initial determination and requested a hearing, which was held before a duly authorized appeal tribunal of the commission. The appeal tribunal issued its decision denying the benefits on the basis of the following statute and its findings of fact:
Sec. 108.04(4) (b), Stats. 1943, read:
"An employee's eligibility, for benefits based on those credit weeks then accrued with respect to an employer, shall be barred for any week of unemployment completed after: . . .
"(b) He has left his employment voluntarily without good cause attributable to the employer, except where the employee has, with the employer's acquiescence and within fifteen days of a known or reasonably anticipated layoff, left to take another job; provided, moreover, that such employee shall be deemed ineligible for benefits from other previous employer accounts for the week in which such leaving occurred and (except where the employee shows that he worked at the employment which he left in twelve weeks or less and that it would not have been held `suitable' if refused) for the four next following weeks."
The findings of fact made by the appeal tribunal were:
"The employer is a manufacturer of machine tools, engaged largely in war production. In 1943, in anticipation of the diminishing importance of machine-tool production, the employer began to change over to the machining of airplane parts, truck transmissions, landing-craft transmissions, etc. This resulted in a substantial decrease in personnel, and the shifting of workers from departments in which work was becoming slack to departments in which they were needed. It was the employer's policy to avoid laying off employees for lack of work, by transferring them to work for which they were qualified, and if necessary, training them. In making transfers, the individual's qualifications, experience, and draft status were the principal determining factors. Seniority was considered only where the other factors were equal. When possible, the worker was allowed to choose the job to which he was to be transferred. The only restriction to the employer's prerogative of transferring employees in the manner which it deemed most advantageous was a provision in its contract with an independent union stating that —
"`No employee shall be transferred to a job for the purpose of affecting seniority.'
"Work in the assembly department was substantially decreased by the change. The number of workers was reduced from about 450 at the peak in January, 1943, to about 200 at the time of the hearing. In the machine department the decrease was proportionately less, dropping from about 3,500 or 3,600 workers at the peak to about 2,400 at the time of the hearing. The reduction of assembly-department personnel began in November, 1943, with the transference of certain utility men with low seniority. In accordance with the standard procedure, in February the assembly-department foreman prepared three lists of men available for transfer, the employee's name appearing on the third list. Approximately 33 men had been transferred previously.
"The employee was first employed by the employer in the paint department in February of 1940. In October, 1940, he was transferred to the assembly department where he worked continuously (except for one two-week period) until the termination of his employment on March 2, 1944. On or about February 29, 1944, the employee was notified that he was to be transferred out of the assembly department pursuant to the policy described above. The decision to transfer the employee was, based, on the fact that he had a draft classification of "2B," he was qualified for machine work by previous experience as a machine operator, and the department foreman was not satisfied with his work. Various jobs were available to the employee in the drill-press, milling-machine, turret-lathe, and engine-lathe departments.
"Although the transfer would have reduced the employee's net earnings at the time, the base rate in all of the departments mentioned was the same as he had had in the assembly department. Moreover, due to the diminution of work, the earnings of the workers in the assembly department had been decreasing, and continued to decrease after the termination. At the same time the earnings in the machine departments were increasing because of increased work schedules. It is possible that the employee ultimately would have earned more, had he accepted the transfer, than he would have had he remained in the assembly department.
"The matter was discussed by the employee with his shift foreman, the department foreman, the industrial-relations man, and the personnel head. The employee refused to accept a transfer and the employer refused to permit the employee to continue in the assembly department.
"Under the circumstances, it did not appear that the proposed transfer was unreasonable. It was in accordance with the company policy and with the necessities of the employer's change-production program. The employee's contention, that the reason for the transfer was to induce him to quit, and that the employer's action was motivated by his having joined a CIO union on February 15, 1944, was not established by the evidence.
"The appeal tribunal therefore finds that the employee left his employment voluntarily without good cause attributable to the employer, within the meaning of section 108.04(4) (b) of the statutes [1943]."
The claimant petitioned the Industrial Commission for a review of the appeal tribunal's decision, and on August 22, 1944, the commission issued its decision, adopting the findings of facts of the appeal tribunal and confirming its decision.
Thereafter the claimant brought this action for review of the decision of the Industrial Commission by the circuit court for Dane county. The judgment of the circuit court set aside the decision of the Industrial Commission and held that claimant was eligible for unemployment benefits because he was "fired because he would not accept a pay cut."
Defendants Kearney Trecker Corporation and Industrial Commission of Wisconsin appeal.
The planned and hoped-for result outlined in sec. 108.04(4) (b), Stats. 1943, and appearing in later statutes as sec. 108.04(7) (a) and (b) is that an employee shall be eligible for the benefits arising from unemployment compensation under certain circumstances favorable to the employee, but that an employee is barred from eligibility for benefits if "he has left his employment voluntarily without good cause attributable to the employer." From the facts disclosed by the record, the question for our determination is whether or not there is evidence to sustain the commission's finding that the claimant in the case at bar voluntarily "quit" in opposition to his contention that he was discharged. Here it must be held that there was a voluntary termination of employment by the employee, because the evidence shows that by his acts he intended to leave his employment rather than accept a transfer. When an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship, it must be held, as the Industrial Commission determined here, that the employee intended and did leave his employment voluntarily and by refusing to accept the transfer left without good cause attributable to the employer. As appears from the statement of facts there is evidence clearly supporting the finding that the claimant so left his employment.
Claimant had been employed from February, 1940, to the time of his leaving, about March 2, 1944. The employer is a manufacturer of machine tools, among other things, and was chiefly engaged in war production just before the time of the proposed transfer of the employee to a different department. In 1943 there was a diminishing demand for machine tools and an increasing demand for the machining of airplane parts, truck transmissions, etc. The department in which the employee was engaged was directly affected by this lowering demand for machine tools and there resulted a necessity for the shifting of workers from a department in which work was becoming slack to departments in which there existed a need for men. The employer's policy was to avoid laying off employees for lack of work, and there was therefore a resorting to the described transfer of employees to work for which each was qualified. In making transfers, it appears that the individual's qualifications, experience, and draft status were factors of considerable importance. The employer operated under a union agreement and, because of the union contract, seniority was considered where other factors were equal, and the claimant's seniority would not be affected by the transfer. It appears that about February 29, 1944, the claimant was notified that he was to be transferred to the machine department. This decision was based on claimant's draft classification as "2B," that work in the assembly department was falling off, and that he was qualified for machine work by previous experience. This transfer afforded him an opportunity to continue in employment at various jobs, although it would reduce the net earnings at first. The wages in the new department did not go below the base rate, and there was a possibility of ultimately earning more in the machine department than he would have earned had he remained in the assembly department. The claimant refused to accept the transfer and insisted on remaining in the assembly department at his old job. The employer refused to permit the claimant to continue in the assembly department and advised him that it considered his refusal to accept the work in the machine department as constituting a "quitting." The claimant persisted in his refusal to accept work in the machine department, and because of his refusal the employment terminated.
In response to the claim for unemployment benefits, the employer answered that the claimant was ineligible for unemployment benefits because he left his employment voluntarily within the meaning of sec. 108.04(4) (b) of the statutes (Stats. 1943). The matter was brought before the proper authorities, investigated by them, and eventually came before the Industrial Commission, where the conclusion was reached that the claimant was not entitled to the benefits of the unemployment compensation asked for by him.
The learned trial judge, referring to the ruling of the Industrial Commission, confirming the decision of the appeal tribunal, was of the opinion that the transfer, resulting as it did in a present reduction in earning, justified a holding that the claimant was entitled to unemployment compensation. But the facts disclosed show that it was not necessary for claimant to be without employment, that he had the alternative of accepting the job provided for by the transfer and continuing in the employ of the employer, or acting to terminate the relation on his own responsibility.
Because the facts constituting the severance of the employee-employer relationship are without dispute, it is considered that the Industrial Commission properly approved the finding of the appeal tribunal holding "that the employee left his employment voluntarily without good cause attributable to the employer within the meaning of sec. 108.04(4) (b) of the statutes [Stats. 1943]." The commission declared that it had reviewed the evidence and found that it supported the appeal tribunal's findings of fact and therefore affirmed the decision of that tribunal and denied the benefits accordingly. The findings of the Industrial Commission are sustained and are controlling.
The findings of fact and conclusions of law made by the court below are without effect and cannot result in overthrowing the well-supported findings of the Industrial Commission. It appears that the circuit court overlooked the consistent and logical interpretation of the phrase "voluntarily quit" when an employer is confronted with a refused transfer. See Digest of Wisconsin U. C. Cases 1952, VL-764, Cases 46-C-78, 49-A-566, 49-A-1025, all of which involve transfers under conditions and circumstances similar to those existing in the case at bar.
By the Court. — Judgment of the circuit court for Dane county is reversed and cause remanded with direction to reinstate the decision of the Industrial Commission and render judgment accordingly.