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Claim of Malaspina

Supreme Court of New York, Appellate Division

April 1, 1955

Claim of Malaspina

APPEAL from a determination of the Unemployment Insurance Appeal Board, filed February 19, 1954, affirming a decision of an unemployment insurance referee which overruled an initial determination by the Industrial Commissioner that claimant was disqualified from November 5, 1953, to December 16, 1953, inclusive, from receiving unemployment insurance benefits.

COUNSEL

Francis R. Curran for appellant.

J. Howard Rossbach and Ronald Kaiser for respondent.

BERGAN, J.

The Industrial Commissioner brings here for review a determination of the Unemployment Insurance Appeal Board which holds that claimant is entitled to unemployment benefits. The question is whether claimant was separated from his employment by his own choice. He is not entitled to benefits under the statute if he 'leaves his employment voluntarily' and 'without good cause' (Unemployment Insurance Law [Labor Law, art. 18], ยง 593, subd. 1, par. [c]).

Page 565

The underlying question is whether a man who fails to keep up his union membership and for this reason alone loses his job in a union shop is deemed as a matter of law to have left his employment voluntarily and without good cause. We think that this situation would show a failure to meet a reasonable condition of the work. Since it would be an act inevitably terminating the employment, it would become also a voluntary withdrawal.

A theoretical argument is at hand that a failure to pay union dues is a matter of concern only between the worker and the union and the consequent pressure of the union on the employer to discharge the employee-member is not the 'voluntary separation' by act of the employee, whatever else it may be.

But we cannot wall ourselves off from the realities of the present-day industrial scene to decide unemployment insurance cases as though we dealt in abstractions. We must look at the world around us the way it is. The labor union is a legitimate and quite universally utilized instrument by which labor and management live and work together. When there is an effective union agreement with the employer by which membership in good standing is a necessary ingredient to continued employment, a man who chooses not to have union membership necessarily chooses not to have work in that shop.

This is quite as 'voluntary' an act as most choices between one course and another. One must foresee the clear sequential effects of one's choice. This choice amounts to an election by the employee not to meet a condition of the work. The refusal to pay a bus fare to get to work on time in the face of a foreseeable discharge; or to get tools, clothing or equipment where they were required as the employee's part of the arrangement; or to secure needed technical preparation to continue the work, where it was open to the employee to do any of these things or not, would be treated as 'voluntary' separations if they had the result of ending the employment.

We are not dealing here with a case supposing a condition beyond the reasonable reach of the employee, or a case where, in controversy with a union, he could not continue or keep up his membership. We are dealing, merely, with the case before us where the claimant did not pay the union fees as required by union regulations and failed after a probation period in the work to obtain union membership required by the labor agreement with the employer. This, in our view, is such a voluntary separation from employment that the Industrial Commissioner was right in holding that claimant is not entitled to benefits under the statute.

Page 566

The agreement effective between the union and the employer was that within sixty days after being hired an employee must join the International Association of Machinists. Claimant, who is an assembly hand, first was hired from April 30, 1953, to June 13, 1953, when he left the employment; and was rehired on October 7, 1953. The employers were dual, but their integration was such that the board treated them as a single employer and we treat them the same way. Failing to join the union, although arrangements had been made for installment payment of an initiation fee of $25, he was 'removed at the request of the union' on November 4, 1953. He was given a 'ten-day notice' by the union after the sixty-day period of total employment had expired which was in accordance with union practice. The shop steward testified: 'If he does not join in the ten days he must go.'

Claimant contends on this appeal that there were two separate employments, one in April and the other in October and that even if it might be held his separation at the instance of the union was not a voluntary separation still neither of the two periods separately considered amounted to a long enough probation period to total sixty days and to give a right under the labor agreement to require the termination of employment, and that therefore ...


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