Summary
In Brown-Brockmeyer Co. v. Holmes, (Ohio), 89 N.E.2d 580, the issue before the court was whether a former employee, who had quit work and voluntarily removed himself twenty-three hundred miles from the location of his base employer, was justified, under a provision of the Ohio Act to the effect that an individual was not disqualified from benefits if the work offered was at an unreasonable distance from his residence, in refusing employment by his former employer which had been continuously available to him, subsequent to quitting work with that employer.
Summary of this case from Davis v. HixOpinion
No. 31717
Decided December 21, 1949.
Unemployment compensation — Regularly employed person removing to point where work unavailable — Waives benefits as against former employer offering employment, when — Benefits not collectible as to former employer — Unemployed employee refused former employer's work-offer — On ground new work not suitable because of distance from employee's residence.
1. Where a person regularly employed removes himself to a point where work is unavailable while his former employment is continuously available, he waives his right to unemployment compensation benefits as against an employer offering such employment.
2. An employee may not voluntarily quit work continuously available to him by his employer in Ohio, move to a distant state where he becomes unemployed, refuse work for which he is reasonably fitted and offered to him in good faith by his former Ohio employer, on the ground that the offer of such employment is an offer of new work not suitable because of its distance from employee's present residence, and at the same time, qualify himself to collect unemployment compensation benefits as to such former employer.
APPEAL from the Court of Appeals for Montgomery county.
The claimant, Fred Holmes, was employed by The Brown-Brockmeyer Company of Dayton, Ohio, from April 15, 1945, to June 15, 1946, when he quit work and went to California. There he obtained work with the Salisbury Motor Corporation in Pomona, California, on August 14, 1946, and continued to work for that company until December 5, 1946, when he was laid off for lack of work.
On December 9, 1946, the claimant filed in California an initial interstate claim for benefits naming Ohio as the liable state and The Brown-Brockmeyer Company as his former employer in that state. The claimant was out of employment for four weeks.
On December 26, 1946, The Brown-Brockmeyer Company sent claimant a letter offering him employment at its plant in Dayton, Ohio. The company also notified the Ohio Bureau of Unemployment Compensation of its offer to claimant of re-employment at Dayton, and the bureau wrote claimant concerning this offer of employment. Under date of January 7, 1947, the claimant, by letter, advised the Ohio Bureau of Unemployment Compensation that he would not accept the employment offered by The Brown-Brockmeyer Company for the reason that he was located 2,300 miles from Dayton.
Under date of January 23, 1947, the Ohio bureau administrator made a determination of the claim holding that the claimant was justified in refusing work offered by Brown-Brockmeyer. On appeal, the referee affirmed the determination of the administrator, holding that the relationship of claimant with his former employer had been completely severed and that the offer of the employer of December 26, 1946, was an offer of new work and that the claimant should not lose the right to benefits because of his refusal of an offer of new work since the work was at an unreasonable distance from the claimant's residence.
The Ohio Board of Review refused to entertain an appeal of the employer to that board, whereupon the employer appealed to the Common Pleas Court of Montgomery County. That court held in favor of Brown-Brockmeyer, whereupon the Board of Review appealed to the Court of Appeals of that county. That court reversed the judgment of the Comon Pleas Court and affirmed the decision of the Board of Review.
The cause is now in this court for review by reason of the allowance of a motion to certify the record.
Mr. A.K. Meck, for appellant.
Mr. Herbert S. Duffy, attorney general, and Mr. Madison C. Perkins, for appellee Unemployment Compensation Board of Review.
The question here presented is whether an employee may voluntarily quit work continuously available to him by his employer in Ohio, move to a distant state where he accepts employment and later becomes unemployed, refuse work for which he is reasonably fitted and offered him in good faith by his former Ohio employer, on the ground that the offer of such employment is an offer of new work not suitable because of its distance from employee's present residence, and at the same time qualify himself to collect unemployment benefits as to such former Ohio employer.
The answer to this problem requires an interpretation of Section 1345-6 d (9) and e (3), General Code (121 Ohio Laws, 717), effective September 5, 1945, which, in part, was as follows:
"d. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual: * * *
"(9) Voluntarily quit his work without just cause. Disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has left his work voluntarily without just cause and until such individual has become re-employed and has earnings equal to at least four times his weekly benefit amount.
"e. No individual otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept new work if: * * *
"(3) The work is at an unreasonable distance from his residence, having regard to the character of the work he has been accustomed to do, and travel to the place of work involves expenses substantially greater than that required for his former work, unless the expense be provided for * * *."
The court must construe the terms, "new work," and, "residence," as used in Section 1345-6 e (3). In the opinion of this court the term, "new work," applies to work other than that offered by the base employer and not to employment of the base employer whose employment the employee has left. In other words, the employee does not lose his rights to benefits if the new employment offered, after he has severed his employment with the base employer, is at an unreasonable distance from his residence. If the base employer is ready and willing to continue the employment, the employee, by voluntarily moving away from the employment without just cause, necessarily waives his right to benefits to unemployment compensation as to his former employer in case the employee later becomes unemployed.
Likewise, the term, "residence," used in the statute, clearly has reference to the residence of the claimant at the time he quit his employment. This inference is strengthened by the language of Section 1345-6 e (4) which provides that the employee shall not be obliged to accept "new work" if "the remuneration, hours, or other conditions of the work offered are substantially less favorable than those prevailing for similar work in the locality." (Italics supplied.)
The locality must be the one where the employer is located and where the former employment existed.
It has been held that where the previous work of an employee is available and suitable and he voluntarily and without just cause puts distance between him and it, he cannot complain that such distance has rendered that job unsuitable. Ex parte Ala. Textile Products Corp., 242 Ala. 609, 7 So.2d 303. See Woodmen of the World Life Ins. Soc. v. Olsen, Commr., 141 Neb. 776, 4 N.W.2d 923.
This court and other courts look with disfavor on the allowance of unemployment compensation where work is available but is refused upon some caprice of the employee. Where a person regularly employed removes himself to a point or causes a situation where work is unavailable, while his former type of employment is continuously available, he, in the opinion of this court, waives his right to unemployment compensation benefits as to an employer offering such employment. Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N.E.2d 643; Farloo v. Champion Spark Plug Co., 145 Ohio St. 263, 61 N.E.2d 313; Nowak v. Board of Review, Bureau of Unemployment Compensation, 150 Ohio St. 535, 83 N.E.2d 208; Hunter v. Miller, Commr., 148 Neb. 402, 27 N.W.2d 638; Wiley v. Carroll, Dir., — Mo., —, 201 S.W.2d 320; Jacobs v. Office of Unemployment Compensation and Placement, 27 Wn.2d 641, 179 P.2d 707.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, STEWART, TURNER and TAFT, JJ., concur.
ZIMMERMAN, J., dissents.