Suitable Work SW 475
This section discusses only those situations related to the claimant’s union affiliation or the union requirements of the prospective employment. Situations involving refusals of work by union members are covered in the section of this volume that deals with the reason for the refusal, i.e., if the basis for the refusal is lack of transportation, refer to SW 150. For information regarding refusals due to an existing trade dispute, refer to TD BDG.
Section 1259(c) of the Code provides that no work or employment shall be deemed suitable and benefits shall not be denied to any otherwise eligible and qualified individual for refusing new work when:
"If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization."
- Required to Join a Company Union
Section 923 of the California Labor Code provides in part:
". . . Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees . . . . Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Labor organizations conforming to this declaration of public policy are bona fide labor organizations. Organizations which do not have full freedom of self-organization and are not free from interference, restraint or coercion by the employer are company unions.
The fact that a company union exists at the establishment where employment is offered does not render the prospective employment unsuitable unless membership in that union is a condition of employment.
- Resign or Refrain From Joining Any Bona Fide Labor Organization
Section 921 of the California Labor Code provides in part:
"Every promise made . . . between any employee or prospective employee and his employer, prospective employer or any other person is contrary to public policy if either party thereto promises any of the following:
- To join or to remain a member of a labor organization or to join or remain a member of an employer organization,
- Not to join or not to remain a member of a labor organization or of an employer organization.
- To withdraw from an employment relation in the event that he joins or remains a member of a labor organization or of an employer organization."
In view of these provisions of the law and the acceptance of the role of labor organizations, employers rarely require a prospective employee to resign from a bona fide labor organization.
Claimants may object to joining a union because they already belong to a union and would have to give up that union membership if they joined another.
If a temporary withdrawal can be obtained from the current union hat maintains the right of reinstatement, the prospective employment is not unsuitable nor does the claimant have good cause to refuse it on the grounds of his or her union relations.
If the prospective employment’s union requires the claimant to abandon membership in the present union, the prospective employment is unsuitable under Section 1259(c).
If the claimant’s present union would subject the claimant to expulsion or discipline for becoming a member of the prospective union, the claimant would have good cause to refuse if expulsion or disciplinary action by the claimant’s present union is a definite rather than a possible consequence.
In P-B-322 the claimants were members of the Pacific Coast Marine Firemen, Oilers, Water Tenders and Wipers Association (hereinafter referred to as the union). They were employed in various capacities on vessels operating on the high seas. After filing claims, the claimants were referred to Military Sea Transport Service (MSTS) an agency of the Federal Government operated by the Navy. The prospective employment was in their usual occupations, with comparable working conditions. The claimants refused the referrals for reasons that included, "acceptance of the employment with the MSTS would have exposed them to disciplinary action by the union." A Union representative testified at the hearing that its members could not accept employment with the MSTS without the union’s consent, that members of the union have been known to work for the MSTS, and that there was no evidence that the union had ever disciplined any member for accepting employment with the MSTS without the union’s consent. In its decision, the Board stated:
"In the instant case there is no evidence that the claimants would have exposed themselves to disciplinary action by their union in the event they accepted the referrals in issue. Although the union representative testified that the acceptance of MSTS work would violate a provision of the constitution of the union he also admitted that members have been known to work for the MSTS and that he knew of no case where disciplinary action was taken . . . . Considering the fact that in the instant case the claimants rejected the referrals without attempting to secure the consent of their union at a time when approximately two thirds of the membership was unemployed . . . (W)e conclude, therefore, that the claimants have not established good cause for refusing the referrals . . . ."
In view of the following provision of the law, an allegation that prospective employment required the claimant to refrain from joining a bona fide labor organization, should be rare. However, if proved, the prospective employment would be unsuitable. Section 922 of the Labor Code provides:
"Any person or agent or officer . . . who coerces or compels any person to enter into an agreement, written or verbal, not to join or become a member of any labor organization, as a condition of securing employment or continuing in employment of any such person is guilty of a misdemeanor."
B. Cost of Union Membership
Joining a union in order to obtain the prospective employment may require payment of substantial amounts for initiation fees or dues. If the prospective job is for steady employment and the union is willing to make arrangements for the payment of fees and dues by installments, the claimant would not have good cause for refusal. When the union fees and dues are substantial and no arrangement for installment payment can be made, the claimant may have good cause for refusing the employment. The same principle holds true where a license or membership in a professional organization is required, or where the claimant would be required to pay an initiation fee and dues for a second union when the individual already belongs to one.
C. Anticipation of Trade Dispute
Occasionally a claimant will refuse prospective employment on the grounds that a trade dispute appears to be imminent at the place of employment, or that the prospective employment has habitually and frequently been involved in trade disputes.
The imminence or tendency towards trade disputes, in and of itself, does not constitute good cause for refusal. However, the genuineness of any offer made immediately prior to a trade dispute should be considered. (See SW 5.)
If the offer of employment is made during a trade dispute, refer to the TD BDG.
D. Uncertainty or Variation in Union Contract
When a collective bargaining agreement is pending, and the terms of the contract are uncertain, a claimant might refuse the prospective employment on the grounds that he or she has no assurance as to what the wage or conditions of work would be. If the current wages and working conditions are suitable, the claimant cannot refuse the job because he does not know to what extent they are going to improve.
However, if the prospective employment is presently unsuitable (for whatever reason), the fact that it may be raised to a suitable level as the result of the pending collective bargaining agreement, would not make the job suitable at the time of the offer.
E. Picket Duty
An offer by a union to hire an individual for picket duty on terms that constitute employment, is an offer of work and is to be considered on the same basis as any other offer of work.
F. Failure to Report to Union to Sign up for Work
When all work opportunities are secured through the union, a claimant who fails to report to the union to sign up for work has failed to apply for suitable employment. (This is not to be confused with failure to register for dispatch, which is an ESW issue.)
In P-B-75, the claimants were bottlers of several brewing companies and members of the Bottlers Union. The employer notified the union of an impending layoff, the union steward posted a list at the job site of those to be laid off., The permanent bottlers were also advised of bumping rights for positions held by 17 "extra" bottlers in six other breweries under terms of the union agreement, which also provided that "all employees must be secured through the union if the union can supply competent men within 48 hours." Those who wished to bid for the jobs marked the posted entry, and the steward could then relay the information to the union. The employer could reject those referred by the union only if they were not "competent to fill the position held by the extra bottler to be displaced." In its decision, the Board stated:
"In the instant case the claimants were instructed by the Department to report for work to their union. Part of the responsibility of the claimants in carrying out this instruction would be to act or not act in a manner which would preclude an opportunity for suitable employment. In failing to sign up for the jobs about which they were notified that were available . . . the claimants failed to carry out this responsibility because it is evident . . . that many job opportunities were lost because of the failure of the claimants to sign up.
We therefore are presented with the question of whether the claimants "failed to apply for suitable employment" without good cause. (Although subdivision (b) of section 1257 of the code is in terms of a failure to apply for suitable employment "when notified by a public employment office," such condition is satisfied when, as here, the notification of suitable employment has been supplied by the union which has been furnishing appropriate employment opportunities to its members with the approval of the Department) . . . . The claimants therefore failed to apply for suitable employment when notified by a designate of the Director of the Department . . . without good cause . . . ."
G. Recall Rights Affecting Offer
A claimant who refuses an offer of rehire because he or she does not want to lose recall rights to a place of preferred employment, does so without good cause.
In P-B-34, the claimant worked for three and one-half years as a tool maker for an aircraft company. He was laid off from the company’s plant located near the Los Angeles airport. In accordance with the collective bargaining agreement in effect between the claimant’s union and the employer, he was given recall rights to the employer. Approximately two weeks after being laid off, the claimant was recalled and offered suitable work in the employer’s Downey plant which was approximately 15 miles from the claimant’s home. The claimant asked the employer representative what recall rights he would have to the facility near the airport and he learned that the collective bargaining agreement provided him with no absolute rights to return to his former location if he accepted the new offer of work. However, he would have a right to request a transfer to the Los Angeles facility in the event an opening for which he was fitted occurred. He would lose no seniority rights by accepting the transfer. If he chose to remain on layoff rather than accept an offer of work at the other location, he would still maintain his recall rights. In its decision, affirming the disqualification, the Board stated:
". . . The sole question is, therefore, whether the loss of recall rights to a place of preferred employment is such a substantial loss as to establish good cause for the refusal of an offer of suitable work. We do not think it does. In our opinion, the claimant’s refusal of immediate employment and his election to remain unemployed so that he could accept employment at a preferred location which might or might not have occurred in the foreseeable future was without good cause . . . ."