Trade Dispute TD 240
Employees on Layoff Status
A claimant on a definite or fixed layoff who refuses to return to work on the scheduled return to work date because a trade dispute has begun is subject to disqualification under Section 1262. While on a definite layoff, the employer/employee relationship is maintained. When the claimant refuses to return, the claimant, in effect, left the job at that point due to the trade dispute and is, therefore, subject to disqualification under Section 1262.
When a claimant is on an indefinite layoff, the employer/employee relationship is severed. An indefinite layoff is the equivalent of a discharge; therefore, when such a claimant subsequently refuses a recall to work, the claimant is not subject to the disqualifying provisions of Section 1262. The claimant cannot be considered to have left the work at the time of the recall because the claimant had been previously terminated at the time of the indefinite layoff. Section 1262 requires the claimant to have "left" work to be disqualified.
The recall to work issue, however, must be resolved under Section 1257(b). Since the claimant is considered to have been previously terminated, the offered work is "new work". Refer to BDG SW 480. Under Section 1259(a), new work which is vacant due to a trade dispute provides good cause for the refusal. If, however, the job offered is not vacant due to the trade dispute, e.g., vacant due to normal turnover or increased business, the claimant’s eligibility must be decided under the other suitable work standards of Section 1259(a), i.e., wages, hours, etc. It should also be noted that even before determining whether or not there is good cause for the refusal, the usual fact-finding must be conducted on whether or not there was an actual job offer made and, if so, whether it was received by the claimant. On recalls to work, especially involving a large number of individuals, the employer may not always be successful in contacting all of the intended individuals
The above guidelines apply to seasonal employees, employees on temporary layoff, on call or extra employees, and furloughed employees. The guidelines do not apply, however, to members of various maritime labor organizations who, under their collective bargaining agreements, have a contractual right to a proportionate share of employment in the industry. In these cases, the refusal of work does raise an issue under Section 1262. See BDG TD 320.
- Seasonal Employees
In the Court of Appeal case of Engracia Campos, et al. v. California Employment Development Department, et al., food processing workers had been placed on seasonal layoffs and were receiving unemployment insurance benefits. During the layoff, these workers retained the right to be recalled to work in order of seniority with their employers. On August 26, 1976, a strike was called and many workers, then employed, left their jobs.
Shortly after the strike began, the employers telephoned the workers who had been laid off prior to the strike and offered them work. The workers refused these offers of work.
The court held that since the claimants had been placed on a seasonal layoff prior to the trade dispute and had not been given a fixed date of recall, there was no contract of employment in existence at the time of their recalls to work. The work offered the claimants was "new work".
The court held that because the claimants would have been required to accept "new work" replacing striking employees, the work was "vacant due directly to a strike, lockout, or other labor dispute" and, therefore, not suitable employment under Section 1259(a). Accordingly, the claimants were not ineligible under Sections 1262 and 1257(b).
- Temporary Employees
In PR 29, the claimant began work for the employer on December 6, 1966. On April 7, 1967, the claimant was temporarily laid off. The claimant was told she would be recalled before long but no definite date was given. The employer did not consider the employer-employee relationship severed during the temporary layoff and continued the claimant on its company payroll. She accumulated seniority for purposes of recall and vacation time for a period not exceeding six months. Upon recall employees who had been on temporary layoff received immediate company financed insurance, whereas newly hired employees were required to wait a period of six months for such coverage. On April 27, the employer sent a letter of recall to the claimant. On May 1, the claimant responded stating she was going back east due to a family emergency and that she planned to be back later and would get in touch with the employer. The claimant filed an interstate claim effective September 10, 1967. In its request for a ruling, the employer stated the claimant quit in May due to a family emergency.
The Board held that the employer-employee relationship was severed on April 7 when she was placed on temporary layoff with no definite date of return to work. The refusal of the recall to work of May 1 did not constitute a voluntary quit.
It did raise an issue under Section 1257(b).
Similarly, a claimant who is placed on temporary layoff with no fixed date of return to work at the time of the layoff, who is subsequently recalled to work and refuses due to a trade dispute, would not be subject to disqualification under Section 1262. As previously stated, the refusal would raise an issue under Section 1257(b) and not a leaving under Section 1262.
A claimant who is placed on temporary layoff with a fixed return to work date, who refuses to return to work because a trade dispute began, would be subject to disqualification under Section 1262.
- On Call or Extra Employees
In PB 373, the claimant was hired on February 13, 1977, and worked a total of five days, not consecutively, as an on call nurse’s aide. She filed a claim effective February 21, 1977, which was also the last date she worked. When she was laid off she had no assurance when she would be called to work again. She did work again on February 27, 1977, and was called to work intermittently thereafter. The Department held that the claimant was laid off due to lack of work on February 21 and therefore was not subject to disqualification under Section 1256.
The Board found that the employer gave notice to the claimant that she was laid off with no definite date of recall and that this action clearly terminated the employer-employee relationship, and for nondisqualifying reasons.
It follows, therefore, that an on call or extra employee who is laid off without a definite date of recall at the time of the layoff, who is subsequently recalled to work but refuses because of a trade dispute, would not be subject to disqualification under Section 1262. The employee’s refusal to return cannot be considered to be a leaving of work when the claimant had been previously terminated. The refusal of work issue must be resolved under Section 1257(b), as previously discussed.
On the other hand, an on call or extra employee who is laid off and given a definite date of recall before or at the time of the layoff, who refuses to return to work because of a trade dispute, would be subject to disqualification under Section 1262.
An on call or extra employee who is working at the time a trade dispute begins and chooses to leave work due to the trade dispute would be ineligible under Section 1262.
- Furloughed Employees
In BD 6396, the claimant was furloughed effective February 18, 1955, at the close of day. He was placed on the furloughed list, which was effective for four years, and seniority rights and other benefits accrued to him for that period. On February 19 an unexpected opening occurred in the claimant’s classification and the employer notified the claimant that he was being recalled to work. The claimant did not respond to the recall. It was the employer’s contention that the employment relationship continued throughout the layoff period, during which the seniority rights of the worker remained in effect and that the claimant, therefore, quit his job, under Section 1256. The Board held that the furloughing of the claimant constituted no more than a layoff due to a reduction in force. The preservation of certain reinstatement rights and continuation of benefits did not alter the fact that the contract of employment was terminated. The subsequent action of the employer in seeking to reinstate the claimant therefore constituted an offer of new work. Accordingly, the Board found the claimant did not voluntarily leave work on February 19.
In the same manner, a furloughed employee who refuses a recall to work because of a trade dispute would not be subject to disqualification under Section 1262. The refusal would raise an issue under Section 1257(b).