Able and Available AA 475
(For information regarding trade disputes or picket duty, refer to TD BDG.)
The availability of a union member is determined in the same manner as any other claimant, using the principles outlined in the Sanchez v. CUIAB case:
"Availability for work" within the meaning of section 1253, subdivision (c), requires no more than (1) that an individual claimant be willing to accept suitable work which he has no good cause for refusing and (2) that the claimant thereby make himself available to a substantial field of employment."
The court went on to say that the burden of establishing "good cause" for any restriction on availability rests with the claimant, and the burden of determining whether the claimant is available to a substantial field of employment rests with the Department.
Most situations involving the availability of a union member will be covered in the section of this volume that deals with the reason for the restriction, i.e., attendance at school. This section discusses only those availability situations that are exclusive to union membership.
A. Union Working Conditions
As a rule, a claimant’s restriction to union working conditions such as wages, hours, etc., will not result in ineligibility as long as all of the following conditions are met:
- The claimant is a member in good standing of the union whose standard of wages and of working conditions he demands.
- The union rules prohibit members from working for wages or under conditions below union standards, and failure to follow these rules would result in disciplinary action being taken against him by the union.
- The union of which the claimant is a member has agreements affecting a substantial percentage of the jobs in the locality where the claimant is seeking work.
A claimant who does not want to join a union, yet restricts him or herself to union wages, hours or working conditions, and in so doing eliminates the nonunion labor market, must be held ineligible.
B. Union Reporting Requirements
When the claimant is a member of a union that controls the only source of work for its members through a placement service (dispatch), he or she must utilize the service and meet all union reporting requirements. The claimant’s failure to meet his or her union reporting requirements is an ESW issue; however, the claimant’s reason for missing roll call may raise an availability issue.
In P-B-62 the Board considered the case of a claimant who had registered with his union local as a carpenter-welder. In the claimant’s local, names of unemployed members who register as out-of-work are placed numerically on an out-of-work list. An unemployed member must report to the local union for roll call each Monday to maintain his or her place on the list. When a member misses Monday roll call, the member’s name is dropped to the end of the list. The claimant was unable to report to Monday roll call because of transportation difficulties, as a result, his name dropped from number 80 to 95 on the list. The claimant was held ineligible under Section 1253(c). The Board, upon initial review, remanded the case to consider Section 1253(e). In their subsequent review of both issues, the Board stated:
". . . We believe that the Department and the referee were in error in considering this case under section 1253(c). While the claimant’s failure to comply with the reporting requirements of the union did result in a loss of his position on the out-of-work list, it did not . . . affect his availability for work for that week. . . . The facts show that the instructions given to the claimant were to register with his union and meet all union requirements that pertained to or may affect his being dispatched to a job, including meeting all union dispatching calls and registrations. . . . (T)hese instructions were specific and reasonable in view of the evidence that the claimant’s union controlled practically all of the hiring in the claimant’s occupation as a carpenter . . . . The claimant’s failure to be present and respond to the roll call, no matter what his excuse may have been, means in effect that he made no search for work at all during that week. Clearly he was not in compliance with the reasonable instructions of the public employment office. Therefore, benefits must be denied under section 1253(e) of the code."
While missing roll call does not raise a question of availability, the claimant’s reason for missing roll call may. The claimant’s availability would be determined the same as any other claimant, using the criteria outlined in the section of this volume that covers the basis for missing roll call, i.e., transportation problem. If the claimant’s reason for missing roll call involved less than four hours, and there was no lost work opportunity, there would be no availability issue.
When a claimant’s principal means of finding employment is through his or her union, registering as out-of-work does not of itself satisfy the eligibility requirements; the claimant must also comply with the union referral and/or dispatch requirements. If a claimant misses a job referral or offer because of failure to comply with these requirements, he or she may be subject to disqualification under Section 1257(b) (Refer to SW BDG.).
C. Restrictions on Dispatch/Referral
A claimant normally must rely on his or her union as a source of employment. Therefore, the claimant would be ineligible if his or her actions or restrictions exclude a major segment of the employment opportunities available through the union. Placing self-imposed restrictions on acceptable employment with the union dispatch facility is no different than a nonunion claimant placing restrictions on acceptable employment. The availability of the union member is determined in the same manner using the same criteria as would be the availability of a nonunion claimant.
The claimant, a journeyman carpenter with some experience as a foreman, advised his union dispatch facility that he would only accept work as a foreman or subforeman. Upon contacting the union dispatch facility, the interviewer found that the claimant had eliminated more than 85% of his potential labor market by excluding journeyman carpentry work. The only reason given by the claimant for
restricting his availability was that he was "tired of swinging a hammer." The claimant would be ineligible on the basis that he has restricted his availability without good cause and has materially reduced his work opportunities.
D. Lack or Loss of Union Membership
A claimant’s membership or nonmembership in a union, his or her suspension, expulsion, withdrawal, or resignation therefrom, affect eligibility only to the extent that they affect his prospects of work. Where nonmembership has no effect upon a claimant’s prospects of work and does not restrict his or her labor market, the claimant’s union relations are immaterial.
When lack or loss of union membership substantially reduces the claimant’s prospect of work in his or her usual occupation, it is important to determine the claimant’s willingness to accept other work.
Frequently the claimant may have training or experience in another occupation in which he or she is willing to work and for which there may be a substantial labor market. When the claimant has no experience or training, other than for the work from which he or she is barred, eligibility is to be based on the claimant’s willingness to accept other work for which he or she is reasonably fitted and for which there is a substantial field of employment open to the claimant.
A withdrawal card from a union does not necessarily imply ineligibility, even when the claimant restricts to union work. Some unions allow placement through the union for members on withdrawal.
Such was the case in Rubino v. CUIAB, a 1972 California Supreme Court case. The claimant was a beer truck driver and union member. All drivers and helpers, had to be hired through the union. The Department required only that the claimant meet his union’s requirements to be dispatched for work. There was considerable unemployment in the beer industry at the time. The business agent informed the claimant that because he was a "temporary" and the local brewery was on strike, his chances of being dispatched to a job as a driver were poor. The claimant asked the business agent how he could pay his bills and his union dues if he did not obtain work. The business agent suggested that he take a withdrawal card from the union and reactivate membership when the employment picture improved. The business agent testified that the claimant had missed no work opportunities through the union hiring hall while on withdrawal status. He stated that the claimant was referred to many salesmen’s jobs (which did not require active membership during the first 31 days) and indicated that if an opening for a driver had occurred, and no permanent men were available, he could have dispatched the claimant to work.
The claimant would have then surrendered his withdrawal card and resumed a full dues-paying status. The business agent further testified that the claimant had, in fact, been dispatched by the union to work as a driver for two days during the period in question and did not surrender his withdrawal card. The claimant testified that he did not inform the Department that he was on a withdrawal status because he understood that it was immaterial insofar as eligibility for jobs through the union was concerned. The Supreme Court supported the Superior Courts findings:
". . . According to the board’s opinion, claimant was required only "to meet his union requirements for dispatch to work." The trial court determined as a matter of fact that claimant had done so, and an examination of the record reveals substantial evidence that claimant was available for dispatch to a job through his union whether or not he was on a withdrawal status. . . ."
In the Rubino case, the issue was the claimant’s efforts to seek work; however, the same reasoning applies when determining the availability of the claimant; the claimant’s restriction must have an effect on his or her availability before an eligibility issue exists.
E. Working Permit
As far as eligibility is concerned, a permit has the effect of membership in a union in that the permit holder has the privilege of being hired under union jurisdiction. Inability to get a permit has the same consequence for the claimant as inability to secure original union membership, the claimant must be available for nonunion work.
Problems which arise with union members who are on permit status a re:
- Does the union accord full right to permit holders as far as hiring or placement is concerned? If the permit holder has the right of referral inferior to that of a regular member, his or her labor market may be substantially more limited than that of the regular member.
- Is the permit instantly revocable? If the permit is subject to immediate cancellation, a constant watch may have to be maintained to determine if the permit is actually in force.
F. Collective Bargaining Agreement Regulates Periods of Work
Some unions, notably in the maritime industry, have instituted collective bargaining agreements designed to spread the available work among union members by regulating periods of employment. Under one contract, after service 180 days aboard ship the union member must separate from employment and leave the ship on its next stop at the port of call where the member accepted employment. The member then may not be dispatched for another voyage until he or she has been "on the beach" for a fixed period to be determined by the number of days in pay status during the most recent voyage.
In such instances the claimant’s availability is determined in the same manner as certain workers in the construction industry who must register with their union and work their way to the top of the list in order to be dispatched. Compliance with union reporting requirements would be sufficient to meet the availability requirements.
G. "No Lost Work Opportunity" Concept
In P-B-260, the claimant was a member of the Plumbers and Pipe Fitters union who obtained employment exclusively through the union. Before traveling by air to Georgia on family matters, the claimant notified his union that his wife would relay any referrals to work, in which case he would return within one day. During his 13-day absence, the union had no work referrals and he was not dispatched until two or three weeks after his return. The Board concluded that the claimant was not ineligible under Section 1253(c), since his activities had not adversely affected his availability for work or caused him to lose any job opportunity.
The concept of "no lost work opportunities," as contained in P-B-260, is applicable only when all of the following conditions exist:
- The claimant’s employment opportunities are obtainable only through a controlled source, such as a union.
- The claimant’s name was on an "out of work list" with the controlled hiring source.
- During the period of involvement in personal affairs:
- The claimant’s name did not come up for a job.
- Conditions were such that the claimant could have been contacted regarding potential employment and could have returned in time to accept the offered employment.
If the foregoing conditions are not present, the concept of "no lost work opportunities" is not material. Unavailability for more than half a workday due to involvement in personal affairs renders a claimant ineligible under Section 1253(c)
without regard to whether or not the claimant’s activities caused any loss of work opportunities.
Such was the reasoning of the California Court of Appeal in the case of UAW v. HRD. This case concerned ten automobile assemblers who appealed decisions holding them ineligible for benefits under Section 1253(c) for various periods of time, because they were out-of-state during a temporary layoff for model changeover. The claimants contended that they should be held eligible as they had not missed any work opportunity. In rejecting this contention, the court reasoned:
"Petitioners cite late rulings by the Unemployment Appeals Board in support of their position. We have examined these and particularly one case entitled In the Matter of Clarence Gosha (Precedent Benefit Decision No. P-B-260). We discern a striking difference between Gosha and the instant case. In Gosha, the employee left California via commercial airline to visit a bereaved aunt in Georgia. Instructions were left at his hiring hall by which he could be reached and could be returned to California and ready to accept employment within a 24-hour period. In the instant case, no petitioner made such provision, in fact, not one of them held himself ready for employment during the period he was outside of California. . . . Accordingly, we hold the trial court correctly determined that the petitioners made themselves unavailable, within the ambit of Section 1253, subparagraph (c) by removing themselves from California, and that the Department did not have to establish the fact that suitable work was available during the petitioners’ absences from the state before denying benefits to those petitioners."
NOTE: It is important to remember that unions differ widely in their rules regarding delinquency of dues, suspensions, withdrawal, registration and dispatch procedures, etc. It is often necessary to contact the business agent or union dispatch facility for verification of the union’s procedures.