Opinion
No. 2000-CA-0874.
March 7, 2001.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 99-2568, DIVISION "K-14" HONORABLE RICHARD J. GANUCHEAU, JUDGE.
Michael R. Delesdernier, Metairie, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
J. Jerome Burden, Louisiana Department of Labor Office of Employment Security, Baton Rouge, LA, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Miriam G. Waltzer, Judge Patricia Rivet Murray, and Judge Terri F. Love)
The Louisiana Department of Labor appeals a judgment in favor of Barry Verbois holding that La.R.S. 23:1601(7)(d)(i), which deems "vacation pay" to be wages for purposes of determining eligibility for unemployment benefits, does not apply to benefits paid pursuant to a collective bargaining agreement. For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY:
Barry Verbois, a member of the Seafarers International Union AFL-CIO (SIU) was employed by Maersk Lines as a seaman from March 25, 1998 to August 5, 1998, when his contract ended. Maersk and SIU had entered into a collective bargaining agreement. Pursuant to that agreement, employers such as Maersk, who are signatory to the agreement, make contributions to fund the Seafarers Vacation Plan (the Plan), which pays benefits to seamen such as Mr. Verbois, in accordance with the regulations of the Plan, following their discharge.
When Mr. Verbois' tour with Maersk ended on August 5, 1998, he was unemployed, and registered with the SIU as being ready to work. Because he was unemployed, he filed for and received unemployment benefits. However, Maersk objected shortly after these payments began, alleging that Mr. Verbois had received vacation pay which disqualified him for unemployment benefits pursuant to La.R.S. 23:1601(7)(d). The Office of Employment Security found that Mr. Verbois had received forty-eight days of vacation pay. When prorated on a daily basis for forty-eight days, three of these days fell within the period of September 20 through 26, 1998. He, therefore, received vacation pay of $168.51 during that week, an amount that should have been deducted from his unemployment benefit for that period.
Mr. Verbois appealed that decision, which was affirmed by the administrative law judge as well as the Louisiana Board of Review. He then filed a petition for judicial review in Orleans Parish Civil District Court. Once issue was joined the trial court rendered judgment in plaintiff's favor, reversing the disqualification. This appeal followed.
DISCUSSION:
Initially, we note that La.R.S. 23:1634 B provides that factual findings of the Board of Review, if supported by sufficient evidence, absent fraud, "shall be conclusive, and the jurisdiction of the court shall be confined to questions of law." The Board adopted the administrative law judge's factual finding that Mr. Verbois had accumulated forty-eight days of vacation pay, which was payable at the completion of his contract, of which $168.51 was attributable to the week of September 20 through September 26. The trial court, quite properly, did not address that factual finding. It, however, concluded, as a matter of law, that La.R.S. 23:1601(7)(d) was not intended to apply to benefits paid pursuant to a collective bargaining agreement, and reversed the Board's decision.
In support of that conclusion, Mr. Verbois points out that the Plan is an employee benefit program funded by contributions from the seaman's employer, pursuant to a collective bargaining agreement between it and the SIU. The payment at issue was made to him by the Plan, not his employer. Pursuant to the collective bargaining agreement, his employer owed this contribution to the Plan at the time he performed the labor. He contends that the Plan is not really a vacation plan, despite its title. Rather, it acts as a savings plan for a seaman while he is working, and disburses his savings to him when he is released from his employment with his ship. He contends, therefore, that the money paid to the seaman from the Plan is not vacation pay within the meaning of R.S. 23:1601(7)(d)(i).
There is nothing in the record to support Mr. Verbois' contention that the Plan is a savings plan. The record contains a letter from the Union attorney in support of the appeal of another seaman who had been denied benefits based on a similar payment. That letter describes the Plan as follows:
The Seafarers Vacation Plan ("Plan") is a multi-employer employee benefit plan, regulated by the Employee Retirement Income Security Act of 1974 ("ERISA"). It is funded by contributions from employers that are signatory to a collective bargaining agreement with the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District ("SIU"). The Plan is governed by a Board of Trustees. The Plan pays benefits to its participants in accordance with the regulations of the Plan. In order to qualify for benefits, a participant must work at least 120 days within a 15 month period for employers that contribute to the Plan, and he or she must apply for benefits within 15 months of the date of discharge from the earliest vessel applied for. The payments to Plan participants are an employee benefit, not salary.
This letter undermines Mr. Verbois' argument that this is a savings plan. In addition, Mr. Verbois testimony regarding the payment during the telephone hearing with the ALJ strongly suggests that the payment to him is "pay in lieu of vacation," as mentioned in the statute. There is, therefore, sufficient evidence to support the Department's finding that the lump sum payment to Mr. Verbois was vacation pay.
The sole issue raised by the appeal, therefore, is whether vacation allowance paid pursuant to a collective bargaining agreement, rather than by an employer, constitutes "wages" under R.S. 23:1601(7)(d)(i). That statute provides:
For the purposes of this Section, whenever the employer or employing unit, or his designated representative, or any vacation plan, or any dismissal plan makes a payment or payments, or holds ready to make such payment to an individual as vacation pay, or vacation pay allowance, or as pay in lieu of vacation, or dismissal pay, or severance pay, such payment shall be deemed "wages" as defined in Section 1472(20)(A) prorated for the period of time which it would have taken such individual to earn remuneration during the employment in which such payments accrued, excluding any overtime payments. (emphasis added)
There are no Louisiana cases that address this issue, and none of the cases supposedly analogous cited by either party is particularly helpful in answering the question. Nor are we persuaded by the decisions of the New Jersey Board of Review included in the record; those decisions relied on case law of that state interpreting a statute that differs significantly from R.S. 23:1601(7)(d).
In support of the legal conclusion that R.S. 23:1601(7)(d) was not intended to apply to this payment, Mr. Verbois points out that the comments to the statute reflect that the legislature intended that vacation allowance paid pursuant to a collective bargaining agreement should not be treated as wages. It is correct that Act 554 of 1990, which amended R.S. 23:1601, originated as Senate Bill No. 801 and was titled "Unemployment benefits — treatment of vacation allowance pursuant to collective bargaining agreement." It also is correct that the preamble to the bill provided that it was:
AN ACT to amend and reenact R.S. 23:1601(7)(d), relative to unemployment benefits; to provide that vacation allowance pursuant to a collective bargaining agreement shall not be treated as wages; and to provide for related matters.
The preamble of a legislative act, however, is not part of the law and it cannot be used to discern the legislature's intent if no doubt exists as to a statute's meaning. State v. Barbier, 98-2923, p. 5 (La. 9/8/99), 743 So.2d 1236, 1239.
Although it appears from the title and preamble of the bill that its author intended that vacation allowance pursuant to collective bargaining agreements should not be treated as wages, the statute that was enacted does not evidence that intent. R.S. 23:1601(7)(d)(I) explicitly, unequivocally, and unambiguously provides that vacation pay allowance paid by any vacation plan is deemed wages for purposes of unemployment benefits. It makes no exception for such payments made pursuant to collective bargaining agreements. In fact, the statute does not mention such agreement. Whether this is by oversight or design, we cannot discern.
The legislature has the power to exclude such payments from the purview of R.S. 23:1601(7)(d)(i). It has not done so, and this court's hands are tied. The statute, as written, applies to payments such as that made from the Seafarers' Vacation Plan to Mr. Verbois, and that payment disqualified him for unemployment benefits. The judgment of the district court is reversed, and the decision of the Board of Review is reinstated.