Opinion
No. 10541.
March 23, 1966. On Rehearing June 30, 1966.
APPEAL FROM FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, MACK E. BARHAM, J.
Melvin L. Bellar, Marion Weimer and James A. Piper, Baton Rouge, for appellant.
Shotwell Brown, Monroe, for appellee.
Before HARDY, GLADNEY and BOLIN, JJ.
Defendant appeals from a judgment denying unemployment compensation benefits to Yvonne B. Silman. Case No. 10,542, 188 So.2d 159 was consolidated with the instant case both for trial and on appeal. These cases involve identical factual situations and the ruling in each case was identical, therefore, reference will be made to both in this opinion.
The record reflects Yvonne B. Silman and Mary A. Waggoner, while employed by Olin Mathieson Chemical Corporation, both became pregnant. Following their fourth month of pregnancy they were placed on maternity leave in accordance with the provisions of a labor agreement entered into between claimants' union and their employer which provides in part as follows:
"(d) All employees who become pregnant shall give written notice of such fact to the Company by the end of the third month of pregnancy, and no employee shall work after the fourth month of her pregnancy. Failure to give such written notice within the prescribed time will be deemed sufficient cause for discharge. Employees giving proper and valid notice will be granted a maternity leave of absence. An employee on maternity leave shall not be permitted to return to work within forty-five (45) days of the date of the termination of her pregnancy. If an employee on maternity leave does not return to work for any reason within twelve (12) months of her departure from work, she shall be conclusively presumed to have left the employ of the Company."
Within a few days after being placed on maternity leave each party filed a claim for unemployment benefits. Both claimants were initially disqualified by the agency upon a determination that they had left their employment without good cause connected with their employment. These rulings were reversed by the Appeals Referee and the Louisiana Board of Review likewise found for claimants. On appeal to the district court the decree of the Board of Review was reversed and the employees were held not entitled to unemployment benefits. From these judgments defendant agency appeals.
Louisiana Revised Statutes 23:1601 (1) provides:
"An individual shall be disqualified for benefits:
"(1) If the administrator finds that he has left his employment without good cause connected with his employment. * * *"
We think the recent case of Algiers Homestead Association v. Brown, Administrator of the Division of Employment Security of the Department of Labor, State of Louisiana, 246 La. 738, 167 So.2d 349 (1964) is controlling. In that case the Supreme Court squarely held that leaving employment due to pregnancy is not good cause connected with the employment. In commenting upon the proper interpretation to be given that portion of the Louisiana Revised Statutes quoted hereinabove, the Court had this to say:
"This subsection provides in plain language that an individual is disqualified for benefits if he leaves his employment without good cause connected with his employment. In the instant case certainly the claimant had good cause for leaving her employment — about this there could no dispute —, but this good cause was in no way connected with her employment. To hold that she was entitled to unemployment benefits under the facts of this case the court would have to disregard the plain language of the statute and rewrite the law under the guise of interpreting it. In other words, the court would have to read out of the statute the words 'connected with his employment' — words which the Legislature specifically incorporated into the statute by amendment in 1952." (Emphasis supplied by the original decree.)
The sole issue in these consolidated cases is whether the claimants took their temporary leaves of absence with or without good cause connected with their employment. The underlying and basic cause for claimants being severed from their employment was their pregnancy. The pertinent provision of the labor agreement requiring a female employee to be placed on maternity leave takes effect only after an employee has been pregnant for a period of four months. This provision is part of a bilateral contract voluntarily entered into for the protection and benefit of employees in order that their employment will be safeguarded.
The Algiers case has held that becoming pregnant is not "job connected." Mrs. Silman and Mrs. Waggoner were responsible for their pregnancies by their voluntary and private actions unconnected with their employment. Consequently, they are disqualified from receiving unemployment benefits for the reason they left their employment without good cause connected with their employment.
For the reasons assigned the judgment appealed is affirmed.
Affirmed.
ON REHEARING
This court in its original opinion held Algiers Homestead Association v. Brown, Administrator of Division of Employment Security of Department of Labor of State of Louisiana, 246 La. 738, 167 So.2d 349 (1964) is controlling herein and plaintiffs-appellants are disqualified from receiving unemployment compensation benefits under LSA-R.S. 23:1471 et seq. This rehearing was granted in order to give consideration to the contention of appellants that the instant cases involve facts and circumstances which are different from those present in the Algiers case, and justify a different conclusion.
It is urged that in the Algiers case the employee, Mrs. Migaud, quit her job due to illness directly resulting from her pregnancy and that there was no agreement between the employee and her employer with respect to the granting or denying of maternity leave. In the case at bar it is asserted there was a contract in existence between the employer and the union, of which claimant was a member, under the terms of which claimant was required to take a leave of absence at four months pregnancy. It is further argued that the decision of this court in Gulf States Utilities Company v. Brown, Administrator, La. App., 165 So.2d 580 (2nd Cir. 1964) should be followed herein. Therein it was held that the separation of the employee from her employment was not voluntary but was enforced in accordance with a company policy and arbitrary rule, and in consequence thereof the employee was held not to be disqualified from receiving benefits because she terminated her employment with good cause. The Supreme Court in Algiers made the following observation which we deem particularly appropriate:
"Prior to the 1952 amendment an individual was ineligible for benefits if he voluntarily left his work without good cause; but the 1952 amendment (Act 401 of 1952), as pointed out by the Court of Appeal in Sheffield v. Heard, Administrator, La. App., 92 So.2d 295, restricted and limited the employee's 'good cause' to causes 'connected with his employment'. The Court of Appeal in that case correctly said: 'The aforesaid amendment of 1952 evidences clearly a legislative intent that for one to be entitled to unemployment compensation benefits, the severance of his employment must have been for some cause connected with his employment.' " 167 So.2d 349, 351.
The author of the Supreme Court opinion then proceeds to point out that although the lawmaker has fixed a period of time just before and just after the birth of the child in which benefits will not be paid, the question of a maternity leave of absence is one wholly within the discretion of the employer. As pointed out in our original opinion, the underlying and basic cause for claimants temporarily leaving their employment was their pregnancy and the Supreme Court in Algiers has clearly stated that this cause is not connected with the employment. The employer-union contract which provides for a leave of absence for a pregnant employee is not in conflict with the statutory provisions of the Louisiana Employment Security law. Whether or not employees leave their employment voluntarily or by reason of requirement of an employer-union contract is not determinative of the issue, for, as held in Algiers, pregnancy may not be considered "* * * cause connected with * * * employment. * * *"
Re-examination of our original decree has confirmed the correctness of the views stated herein, and accordingly, it is reinstated and made the judgment of the court.