Voluntary Quit VQ 475
This section relates to whether good cause for leaving the most recent work exists when an individual's leaving of work is caused by occurrences relating to union status, union rules, or other circumstances relating to union relations. Refer to the Trade Dispute Volume for a complete discussion of the principles of eligibility when a leaving of work occurs at the beginning, during, or end of a trade dispute.
There is nothing inherent in union status, union rules, or collective bargaining agreements that would give a claimant good cause for quitting that he would not have otherwise.
The basic definition of good cause as, "a real, substantial, and compelling reason for leaving employment of such nature as would cause a reasonable person genuinely desirous of retaining employment to take similar action," should govern voluntary leaving determinations, regardless of union relations. It is the failure to comply with or the violation of the California Unemployment Insurance Code which we are concerned with, whether or not it is accompanied by a violation of a union rule.
B. Objections to Union
Title 22, Section 1256-21(b), provides:
- An individual's refusal to join or retain membership in or pay an agency service fee to a bona fide labor organization which has a collective bargaining agreement with the employer which provides that union membership or fee payment is a condition of hire or continued employment, or an individual's personal objection to all unions, some specific unions, union officials, or union practices and policies, is not good cause for voluntarily leaving work unless based on a bona fide conscientious objection.
- The result is different if a worker does not have to join a union or pay a union fee. If union membership or payment of a union agency service fee is not a condition of hire or continued employment under a collective bargaining agreement, an individual's refusal to join or to retain membership in a bona fide labor organization or pay the fee is not good cause for voluntarily leaving work unless the individual's refusal is based on a bona fide conscientious objection or the individual is threatened with and has a reasonable fear of, or is subjected to, physical injury to force him or her to join or to remain a member of a union.
Generally speaking, a refusal to join or maintain membership in a bona fide labor organization, which has a collective bargaining agreement with the employer that specifies union membership is a condition of employment, is a voluntary leaving of work without good cause. It should be noted that, while the department designates the leaving of work as a voluntary quit, as far as the claimant or employer is concerned the claimant was discharged. Therefore, when preparing a claimant or employer notice, the MC BDG Reasons for Decision are to be used.
In P-B-290, the claimant was discharged after approximately 27 years of service with an aircraft company because he refused to either join the union which was the certified collective bargaining agent for employees of his unit, or to pay an agency service fee to the union. The claimant had been notified twice in writing that if he did not pay the agency fee, he would be discharged. The claimant had no objection to unions generally, but objected to this particular union. He believed the individual reserves the right to belong or not to belong to a union, and he objected to paying an agency fee to retain the job he had held for so many years. The employer stated that it was obligated by law and by contract to discharge any employee who failed to join the union or to pay the agency service fee, and it endeavored to abide by both the law and the contact. In holding the separation a voluntary quit without good cause, the Board stated:
Where an employee's employment is terminated by the employer in compliance with the union's request under the collective bargaining agreement, because of a claimant's failure or refusal to join a bona fide union or to pay his union dues or fines, we have held that the claimant, in effect, leaves his work on a voluntary basis, and the question is whether such leaving was with good cause.
In this case, the claimant lost his job because he willfully refused and failed either to join the union, or to pay the agency service fee in accordance with the provisions of the collective bargaining agreement between the union and the employer. In line with our prior decisions, we hold that this was a voluntary leaving of work . . . the claimant had no good cause under the law for failing to pay the fee and he refused to do so for personal reasons which were noncompelling . . . .
Exceptions to this general principle might occur when:
- The claimant's objection to union affiliation is based on the tenets of his religion. (Refer to VQ 90 for such cases.)
- The claimant's objection is based on the fact that he would be expelled from, or required to resign from his present bona fide union and thereby be eliminated from work in a higher classification for which he is fitted.
A hypothetical example serves to illustrate the second exception. A claimant who had been working as a maintenance man during a period when carpentry work was slow, was required to join a bona fide union (not carpenters) when the shop was organized. He was a member, in good standing, of a carpenter's union which expelled members who affiliated with other organizations. Carpentry work was controlled by the union. Since loss of his membership would eliminate him from working as a carpenter, a classification for which he was qualified by experience and training, he would be, in effect, downgraded by failing to comply with the union rule prohibiting affiliation with another organization. The claimant would have compelling reason for refusal to join another union. (This is an extreme example as most unions allow members to take withdrawal with reinstatement rights under such circumstances. If the claimant's union had no objection to its members taking a withdrawal, the failure to do so and thereby continue in employment would be without good cause.)
C. Collective Bargaining Agreement
Title 22, Section 1256-21(f), provides:
. . . [I]f an individual leaves work due to an employer's violation of a provision of a collective bargaining agreement, the individual's leaving is with good cause if a reasonable person genuinely desirous of retaining employment would have left work under the same circumstances because of undue hardship or other real, substantial, and compelling reasons . . . . An individual who leaves work as required by a collective bargaining agreement provision, to which the employer has agreed, leaves work involuntarily in accordance with the agreement and is not subject to disqualification under Section 1256 of the code for voluntarily leaving work without good cause. If an arbitrator or court has held in a final decision that an employer has violated a substantial provision of the collective bargaining agreement and thereafter the employer persists in the same violation, an individual's leaving of work for this reason is for good cause if the violation is of such nature as to cause a reasonable person genuinely desirous of retaining employment to leave work.
Therefore, a violation of the collective bargaining agreement is a breach of obligation, whether committed by employer or employee. However, it does not necessarily follow from this that any violation of agreement by the employer will give an employee good cause to quit, any more than it would follow that any discharge of an employee for violating the agreement would be a discharge for misconduct.
Generally, a claimant's quit because his employer has allegedly violated the collective bargaining agreement will be with good cause only where the employer's action caused the claimant to suffer undue hardship.
Title 22, Section 1256-21(i)(1), provides:
If an individual voluntarily leaves work because the employer changes wages or hours of work in violation of the terms of a collective bargaining agreement, the individual leaves with good cause if prior to leaving the individual has used any existing grievance procedure or complaint remedy, or has filed a grievance or complaint and the employer's violation continues after an unreasonable delay in the disposition of the grievance or complaint, and either of the following conditions exists:
- The wages paid are substantially less than those specified in the collective bargaining agreement, or the hours of work are substantially changed from those specified in the collective bargaining agreement.
- The wages paid or hours of work differ from those specified in the collective bargaining agreement and the individual is subject to union disciplinary action if he or she continues to work under conditions in violation of the collective bargaining agreement.
However, under the same Section the Comments provide:
Occasional requests by the employer that a worker work a few minutes overtime ordinarily would not be substantial breach of the collective bargaining agreement. A minor difference in wages would justify a complaint by the worker with the Labor Commissioner but would not justify leaving work with good cause unless the worker is subject to union disciplinary action if the individual continues working. Wages and hours of work may have been negotiated at conditions more favorable than those prevailing for similar work in the locality. Thus, the employer's changed wages or hours of work in violation of the collective bargaining agreement might be equal to or more favorable than the prevailing conditions but still be a substantial change to justify leaving work for good cause. Wages and hours of work changed by the employer in violation of the collective bargaining agreement to be substantially less favorable than those prevailing for similar work in the locality would always be a substantial change to justify leaving work for good cause. In every instance, the individual must take steps to preserve the job, including use of complaint and grievance procedures, prior to leaving work. A failure to do so results in a leaving without good cause.
A claimant must not only have a justifiable reason for quitting; he or she must also do everything consistent with that reason to attempt to remain in employment. Where utilization of the grievance procedure could possibly result in the removal or satisfactory adjustment of the objectionable feature, the claimant, as a reasonable person, would be expected to file a grievance and to wait for completion of the grievance procedure. Good cause for leaving work will generally be negated where the claimant quits but fails to utilize the grievance procedure established by collective bargaining.
When an individual voluntarily leaves work because the employer changes wages or hours of work to conditions not conforming to union rules, and the employer has no collective bargaining agreement with the union, eligibility will be determined by using the criteria outlined in Title 22, Section 1256-22(b). (See also VQ 500.)
D. Termination Brought About by Union Rule
Title 22, Section 1256-21(c), provides:
An individual who voluntarily leaves work as required by a union rule to which an employer has not agreed voluntarily leaves work without good cause.
In P-B-110, the claimants sailed under Class "B" permits as members of the Sailors Union of the Pacific. The union rules required "B" permit employees to leave their ship after 90 days, which the claimants did. In some cases union representatives told the claimants to leave ship, in other cases the claimants left on their own. However, since the employer was not a signatory to this union rule in the collective bargaining agreement, he did not tell any claimants to leave work at the end of 90 days. The claimants believed that if they had not left work when they did, they could be expelled from the union. The Board held that the claimants were the moving parties in the separation since the employer was not a signatory to such a requirement in the collective bargaining agreement. In its decision the Board held:
. . . The employer does not participate or formally agree to the severance of the employment relationship. Each of the claimants . . . could . . . have remained on board ship except for their obedience to the rule imposed by the union. Their leaving was voluntary . . . without good cause.
Thus, if the claimant's termination is in obedience to a union rule which is not part of the collective bargaining agreement, or not part of an agreement to which the employer is a signatory, there is a separation issue under Section 1256.
E. Employer Discrimination Due to Union Relations
Title 22, Section 1256-21(g), provides:
If an individual leaves work because the employer has engaged in harassment, discrimination, or coercion against the individual to compel him or her to resign from or not to join a bona fide labor organization or because of authorized union activity, the individual's leaving of work is with good cause . . . . If an individual leaves work because the employer requires, as a condition of continuing employment, that the individual join or retain membership in a company union dominated by the employer, the leaving is with good cause.
Generally speaking then, a claimant who leaves work because he has been subjected to unfair discrimination because of union membership or activity, has good cause for quitting. Seldom, if ever, would an employer admit that an employee was discriminated against because of union membership or activity. It is necessary, therefore, to examine the facts to see if they lead to the logical conclusion that the claimant was in fact unfairly discriminated against because of union membership or activity.
Whenever, the employer commences to single out an employee for unpleasant treatment immediately after that employee has joined a union or has commenced union activities, it is reasonable to ascribe such treatment to anti-union discrimination, provided the "unpleasant treatment is not valid disciplinary action necessitated by some action of the claimant. Unpleasant treatment can take the form of transfers to less desirable jobs or shifts, continual "bawling out," demotion, etc.
Even the fact that a claimant without authorization engaged in union activities on the employer's time and premises would not warrant his being treated in an unfair manner on the job although it would probably sustain a finding of discharge for misconduct in connection with his work.
Section 922 of the California Labor Code provides that:
Any person or agent or officer thereof 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 the employment of such person is guilty of a misdemeanor.
It is the individual's right, according to both State and Federal laws to affiliate with any labor union of his or her choice. If, as a condition of retaining employment, a claimant was required to resign from or refrain from joining a bona fide labor union, his quitting such employment would be with good cause within the meaning of Section 1256 of the Code.
An employer, in such a situation, might deny that such a requirement existed. The burden of proof rests with the claimant but similar allegations from union officials and former employees would lend weight to the claimant's statements.
Section 923 of the Labor Code, Declaration of public policy, states in part:
In the interpretation and application of this chapter, the public policy of this State is declared as follows:
. . . [I]t 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.
Since the use of intimidation or coercion by an employer to prevent an employee from joining or continuing membership in a union is against public policy, a claimant will have good cause for quitting when an employer resorts to such tactics. The following example will illustrate the types of employer coercion which would give a claimant good cause for quitting.
A union member was employed in an open shop. His union began attempts to unionize the entire shop. As soon as these attempts to unionize the shop came to the management's attention, the claimant found himself being assigned all the undesirable jobs, given the poorest equipment with which to work, and scheduled to the most undesirable hours. Prior to this time, the undesirable jobs and hours had been given to the newest men. Now they were given the better assignments. His supervisor began to ride him and criticize work that previously had been acceptable. Threatening notes were left in the claimant's locker and on his car. When these notes were brought to the management's attention they were ignored, and the claimant was told if he didn't like the working conditions he could quit.
In such a situation, the claimant would be justified in leaving work because the employer's actions were clearly coercing and for the purpose of discouraging the claimant's continued union membership.
F. Union Disciplinary Action
Title 22, Section 1256-21(d), provides:
An individual who leaves work because of union disciplinary action taken against the individual due to an infraction of a union rule or other offense against union discipline has voluntarily left work without good cause if the action of the union is not arbitrary or capricious and if the individual has an opportunity to protest the union charge through any customary union procedure.
Therefore, if the claimant voluntarily left his or her employment solely because the union took disciplinary action, the quit would be without good cause and the claimant would be ineligible under Section 1256.
G. Union Intimidation of Employee
Title 22, Section 1256-21(h), provides:
(1) In the absence of a trade dispute with the employer, if the individual is directly threatened with and has a reasonable fear of, or is subjected to, physical injury by union members unless the individual conforms to union practices or demands not contained in a collective bargaining agreement, the individual's voluntary leaving of work due to the threat of, or subjection to, physical injury is with good cause. An example is direct threats by union members to physically assault an individual who produces more than a maximum work quota enforced by a union.
Where union membership is not a condition of hire or continued employment, the employee has a right to refrain from joining a union. If union members subject the claimant to intimidating acts to force him or her to join the union and continued employment would subject the claimant to risk of physical injury, the claimant will have good cause for quitting. However, the claimant subjected to only minor harassment, such as jeering and the "silent treatment," will not have good cause to quit.