American Bridge Co. v. Review Board of the Indiana Employment Security Division

Bowen, P. J. This is an appeal by the employer from a decision of the Review. Board of the Indiana Employment Security Division holding that the appellees were eligible for benefits under the Indiana Employment Security Act. Burns’ 1951 Replacement, § 52-1525, et seq. The appellees were employees of the American Bridge Company Plant in Gary, Indiana, and were all members of the bargaining unit for which the United Steelworkers of America, CIO, had been authorized to bargain. By stipulation, the .claimants and employer agreed that the claim of Frank Rempis would be representative of all claims, and that the decision on his claim would govern all other claims. The Review Board held that claimants were eligible for benefits during the two-week shutdown of the plant if they received no vacation pay, or for benefits during one week if they received vacation pay for one week, on the grounds that they were unemployed, and that their unemployment was not voluntary, and that they were available for work. The assignments of error raise the question as to whether or not the finding of.the Review Board that claimant was not voluntarily unemployed during the period in question is contrary to law; and that claimants were not available for work within the meaning of the act; and whether the evidence is insufficient to sustain the finding of the facts. [578] The facts in this case were stipulated by the parties, and the law is settled that where the facts are stipu [579] lated, such stipulation of facts is binding and conclusive between the parties and upon the Review Board unless it is set aside or withdrawn. Schrieber v. Rickert (1943), 114 Ind. App. 55, 50 N. E. 2d 879; Barker v. Reynolds (1932), 94 Ind. App. 29, 179 N. E. 396; Pettit v. Continental Baking Co. (1932), 94 Ind. App. 250, 180 N. E. 607. It was stipulated and agreed by the parties that the employer, in accordance with § 11 (c) 2 of the bargaining agreement, exercised its right to close down the plant for two consecutive weeks for the purpose of taking inventory and granting vacations to those who were eligible. The evidence showed that at the time of the lay-off, the following notice was posted in the company plant: “TO ALL EMPLOYEES: “The Gary Plant of the American Bridge Company will shut down during the period from July 10 to July 23, 1950, inclusive, for the purpose of taking inventory. “Insofar as possible, this period will be designated for vacations. Each employee will be contacted as to the scheduling of his vacation so that he may have ample opportunity to make arrangements. (Our italics.) “(signed) AMERICAN BRIDGE COMPANY” The provisions of the union contract set forth in the stipulation of the parties, § 11 (c) 2 provided as follows: “It is understood and agreed that a period of temporary shutdown in any department for any reason between May and October 1, unless other periods are mutually agreed upon, may be designated as comprising the vacation period for any employees of the department who are eligible for vacations.” [580] Appellee Rempis did not have sufficient seniority to be eligible for vacation with pay. This is a case of first impression in this state. There are several cases in other jurisdictions cited by the appellant, holding that employees who were not entitled to vacation pay were ineligible for unemployment benefits during a vacation closing of the employer’s plant; the facts of which decisions are clearly distinguishable from the case at bar. In the case of Kelly v. Administrator (1950), 136 Conn. 482, 72 A. 2d 54, the facts were different from the facts of the instant case in that the company shut down the plant for the express purpose of a vacation period. The same situation is true with reference to the case of In re Buffelen Lumber & Mfg. Co. (1948), 32 Wash. 2d 205, 201 P. 2d 194. The company chose to shut down its plant to grant employees vacations. In the case of Claim of Rakowski (1950), 276 App. Div. 625, 97 N. Y. S. 2d 309, the union made a request on behalf of the employees that the plant be closed for vacation purposes. In the case of Bedwell v. Review Board (1949), 119 Ind. App. 607, 88 N. E. 2d 916, certain miners absented themselves from the employment although the employers kept the mines open for work in order to observe a memorial period called by the President of the United Mine Workers of America, and this court properly denied benefits during such period. All of the foregoing cases are clearly distinguishable from the case at bar. In the instant case there is no question but that the shutdown occurred as a result of voluntary action of the company for the purpose of taking inventory, and as stated in the notice, insofar as possible, the period will be designated for vacations. By the use of the words “insofar as possible, this period will be designated for vacations” the company does not show a clear and [581] unequivocal intention to declare vacations for all. By reason of the terms of the employment contract with the union, such period could only be designated for employees of the plant who were eligible for vacations. One of the conclusions reached by the Review Board was as follows: “The Review Board further finds that the provisions of contract between the employer and United Steelworkers of America CIO specifically excludes the claimant from being- considered on vacation during such period because it provides that the employer may, at its election, stagger the vacations for eligible employees during the calendar year or may close down its plant. In the latter event, such period would be considered a vacation for only those employees who were eligible for vacation. Since the contract specifically excluded the claimant in the event the employer closed for vacations and the employer could have granted the eligible employees their vacations without closing, the claimant, as a result of the union’s agreement with the employer, was not on voluntary leave for vacation purposes and thus unavailable for. work during the period involved herein.” In the opinion of this court, such statement is a proper interpretation to be placed as a matter of law upon the contract in question, upon the facts of this case, and the provisions of the Indiana Employment Security Act. One of the express purposes of the Indiana Employment Security Act is to provide for employees who are unemployed through no fault of their own. There is nothing within the provisions of the union contract which would give rise, even inferentially, to a reasonable construction that employees who were not eligible for vacations were affected in any way by the designation of the vacation period for eligible employees. Certainly, the employees who were [582] not eligible for vacation have not by any reasonable interpretation to be placed upon the terms of § 11 (c) 2 of the bargaining agreement consented to any action by the company which would permit the designation of a period of vacation without pay for them. The agreement specifically says that such period of shutdown may be designated as comprising the vacation period for the employees of the department who are eligible for vacation. We recognize that the Supreme Court of Massachusetts in the case of Moen v. Director of Division of Employment (1949), 324 Mass. 246, 85 N. E. 2d 779, in passing upon a union agreement, which is practically identical to the one in the case at bar, reached a different result, and held that claimants were voluntarily unemployed by reason of the union agreement. In the Moen case, the Supreme Court of Massachusetts affirmed a decision of a district court which had affirmed a decision of the Review Board of the division of employment security. The company’s plant was shut down to enable its employees to take their vacations. In the case at bar, The Review Board had the right to adopt the reasonable inference that the shutdown of the American Bridge Company plant was for the purpose as stated in the notice of closing, “to take inventory,” and under the union agreement and the notice the employer designated that insofar as possible the eligible employees would be required to take their vacations during such time. We cannot read anything else into the provisions of the union agreement and the circumstances disclosed in the instant case, nor can we substitute our judgment for that of the Review Board as to the facts concerning the voluntary action of the company in closing the plant to take inventory. We do not believe the reasoning contained in the Moen case, and similar cases from [583] other jurisdictions, is sound as applied to the facts of the instant case. Also, in comparing this Massachusetts case with the case at bar, we wish to point out that, such court stated in its opinion as follows: "... but it would not, as the claimant concedes, have been feasible for the company to offer employment to him during the shutdown.” Certainly, such a statement could not be made concerning the employer in the case at bar, because the employer in its notice of the shutdown uses the words “insofar as possible, this period will be designated for vacations. Each employee will be contacted as to the scheduling of his vacation so that he may have ample opportunity to make arrangements.” This statement itself in the notice is an equivocal statement of the company which does not show a desire to compel vacations for all employees under the union agreement, but only insofar as it was possible to do so and for those who were eligible. Appellant advances the further argument that since the express purpose of the Employment Security Act is to avoid the serious menace of economic insecurity, that a vacation without pay is not economic insecurity within the compass of the legislative declaration of public policy. To the worker who depends upon his weekly paycheck for his daily bread, it would appear to be tortuous reasoning indeed to say that a vacation without pay does not constitute “economic insecurity.” This same section, § 52-1525, Burns’ 1951 Replacement, in its declaration of public policy regarding such act, states: ". . . Protection against this great hazard of our economic life can be provided in some measure by the required and systematic accumulation of funds during periods of employment to provide benefits to the unemployed during periods of unemployment and by encouragement of desirable stable employment. ...” [584] Since the “encouragement of desirable stable employment” is contained within the legislative declaration of policy and purpose of the Indiana Employment Security Act, it can hardly be seriously contended that the Legislature intended to adopt any doctrine of a necessity for permanent severance of the employment relation. In order to have stabilization of employment, both for industry and workers, the fact that a worker expects to resume his previous employment should and does not, under the Indiana Employment Security Act, constitute a bar to his being unemployed, under the act, and entitled to benefits if otherwise qualified. For the reasons given herein, the decision of the Review Board is not contrary to law, and the appellees herein were unemployed within the meaning of the Indiana Employment Act; they were not voluntarily unemployed, and they are eligible for benefits as found by the Review Board. Finding no reversible error, the judgment and decision of the Review Board is affirmed. Judge Royse dissents with opinion. Judge Wiltrout dissents. Judge Crumpacker concurs with opinion. Judge Achor not participating.