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Kartridg-pak Co. Inc. v. Johnston

OPINION FILED SEPTEMBER 27, 1963.

KARTRIDG-PAK CO., INC., APPELLANT,

v.

ROBERT JOHNSTON, DIRECTOR OF LABOR, ET AL., APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. William V. Brothers, Judge, presiding. MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:

This appeal presents the question whether the claimant, Bruno Bertucci, a former employee of plaintiff, the Kartridg-Pak Co., Inc., was disqualified from receiving unemployment compensation benefits for the period from October 21, 1960, through December 10, 1960, by reason of his failure "to accept suitable work when offered him." (Ill. Rev. Stat. 1959, chap. 48, par. 433.) The Board of Review of the Illinois Department of Labor, affirming the finding of a departmental referee, decided that no firm and definite offer of employment had been made to claimant and that he was not therefore ineligible for benefits. Subsequently, in a proceeding for administrative review, the circuit court of Cook County affirmed the decision of the board, and plaintiff, under authority of section 1100 of the Unemployment Compensation Act, (Ill. Rev. Stat. 1959, chap. 48, par. 520) has perfected a direct appeal to this court. Broadly stated, it is plaintiff's contention that claimant was offered and refused work and that the finding of the board is against the manifest weight of the evidence.

The claimant, a 50-year-old married man with a family, was employed by plaintiff for a 14-year period extending from 1946 to October 21, 1960. The plaintiff at one time apparently had three plants and, initially, claimant worked at the Fullerton Avenue plant where he was in charge of shipping and receiving, and occasionally worked in the stockroom. When that plant was closed down he was transferred to plaintiff's Mount Prospect plant where he did substantially the same work. In 1952 he was transferred to the Pacific Avenue plant and, just prior to October 21, 1960, was there working at a job entailing inventory and parts under the supervision of a man named Mojonnier, an employee of plaintiff who was engaged in what is described in the record as a plastic milk carton project. Mojonnier, according to a witness for plaintiff, was negotiating for the purchase of the project and the sale was eventually consummated in such manner that Mojonnier was to assume all expenses of the operation from and after October 1, 1960. It is clear, however, that Mojonnier did not then assume the expenses of claimant's wages, for it is agreed that claimant continued in plaintiff's employ until October 21, 1960, when plaintiff shut down all of its operations in the Pacific Avenue plant. On the latter date, according to the claimant, he and two other employees of plaintiff were laid off without prior notice and informed that the plant was being closed.

Three days later, on October 24, claimant filed a claim for unemployment compensation benefits, and on October 27 the administrative dispute had its origin when plaintiff filed with the Director of Labor a notice of "Possible Ineligibility." Among other things, the notice represented: (1) that claimant had been advised the plaintiff had another job for him at a different plant, but claimant had never indicated he was interested in such job; and (2) that both Mojonnier and claimant had advised plaintiff that claimant was working for Mojonnier on a temporary basis. Claimant's unemployment continued until late January, 1961, two days prior to the hearing before the referee, when he obtained employment at $50 a week.

There were but two witnesses who testified at the administrative hearing, the claimant and Alex Mackenzie, the latter being plaintiff's assistant general manager. Although he did not fix the exact date, it was the testimony of Mackenzie that he had discussed the matter of claimant's employment with Mojonnier and that the latter, while stating that he could use claimant as his own employee on a part time basis to start with and on a full time basis within a month or two, had said that plaintiff should keep claimant if it needed him. On October 18, 1960, still according to Mackenzie, plaintiff's foreman at the Pacific Avenue plant, a Robert Raufeisen, told claimant that plaintiff needed him due to his familiarity with plant operations and parts and offered claimant a job either in the crib room or the assembly room, or both. In reporting the matter to Mackenzie, Raufeisen stated the claimant had replied he felt he had a good prospect with Mojonnier and thought he had better stick with him, and that he, Raufeisen, had closed the conversation by telling claimant that if he changed his mind, or if the employment with Mojonnier did not work out, he should reconsider plaintiff's offer and contact Raufeisen.

The claimant denied that he had engaged in a conversation with Raufeisen on October 18, and testified that the first knowledge he had of his change of status was on October 21 when he was abruptly laid off. He made a specific denial that Raufeisen had offered him work, or that he had said he had a good thing with Mojonnier. As to the latter aspect, claimant said that he had not discussed employment with Mojonnier, whom he described as having no business, no customers and nothing with which to pay employees. He did testify, however, that while he was looking for work after being discharged by plaintiff he had, on a part-time basis and without pay, helped Mojonnier move from the Pacific Avenue plant, and said he had done so because he had little to do and hoped it would lead to future employment.

On or about October 25, 1960, by Mackenzie's further testimony, Raufeisen again asked claimant if he was interested in continuing with plaintiff, but claimant answered that he was not sure and then defaulted in a promise to let Raufeisen know within the week. The claimant, while agreeing that he had a conversation with Raufeisen on this occasion, denied that he had been offered work and testified that the foreman, without mentioning a particular job or salary, had remarked only that "he would like to see me working at Mount Prospect."

Though there is disagreement over the exact date, it is undisputed that claimant and two other employees, who had been laid off when the Pacific Avenue plant was closed down, had a meeting with Mackenzie on October 25 or 26. By Mackenzie's version, the purpose of the meeting was "to discuss other employment for the three men," and he testified that he had disposed of the problem as it related to claimant by stating that "we didn't need to worry about Bruno because he was working and we had offered him his job back." He said he then asked claimant if he was interested but the latter said he would let them know.

Claimant, who points out that he had no employment when the meeting was held, testified that its purpose was to discuss vacation and severance pay due the three men as the result of their discharge. According to him, Mackenzie also did no more than to remark that he would "like to see" plaintiff and one of the other men working at the Mount Prospect plant, but mentioned no particular work or salary, and in the next breath said he would help the men locate other jobs and give them references if needed.

Subsequently, on November 15, 1960, plaintiff sent a letter to the claimant, wherein it was stated:

"You will recall our visit in my office a short time ago concerning your possible separation from our employment following the purchase of Project X by Mr. Mojonnier. I mentioned to you that Bob Raufeisen was still waiting to hear from you regarding his offer of a job in the crib room or in assembly.

In the meantime I have checked into company policy regarding separation from employment to determine whether we could allow severance pay in your case. I am advised that this policy does not allow severance pay in the case of an employee who separates himself from our employment voluntarily.

Your separation would have to be considered voluntary since you could have continued to work for us if you had chosen to. Therefore the check which you are receiving is for the difference between the vacation pay you had earned and the extra week's salary included in the last three week pay check.

If you have any questions concerning this, please call Jim Martin or me. Meanwhile, let me wish you the very best for the future and let us hear from you if you wish to reconsider our offer of a job or if I can give you a hand in locating a position to your liking or with a letter of recommendation."

This communication, we believe it significant to note, was written after the administrative issue had been drawn between the parties and was in the hands of ...


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