Laurel Racing Ass'n Ltd. Partnership v. Babendreier

KENNEY, Judge. Appellants, the Laurel Racing Association Limited Partnership (“Laurel Racing”), the Maryland Jockey Club of Baltimore City, Inc. (“MJC”), and Race Track Payroll Account, Inc. (“RTPA”), 1 appeal the decision of the Circuit Court for Anne Arundel County in favor of appellees, Josepha Baben-dreier, the Board of Appeals (the “Board”), and the Department of Labor, Licensing and Regulation (“DLLR”). 2 The Board had affirmed its hearing examiner’s ruling that Baben-dreier was eligible for unemployment benefits. We have consolidated and reworded appellant’s questions for review as follows: 3 ⁴ Did the Board err in concluding that Babendreier was “available” for work pursuant to the Labor & Employment Article, § 8-903(a)(l)(ii) of the Maryland Annotated Code? Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND Appellants own and operate Laurel Park and Pimlico Race Course (“Pimlico”), in addition to Rosecroft Raceway, a live racing and simulcast venue for live races held at other tracks. Babendreier was employed as a Mutuel Department teller by RTPA, which provides employee and payroll services at the race tracks. 4 For many years, Laurel Park and Pimlico employees have been represented by United Food and Commercial Worker’s Union, Local 27 (the “Union” or “UFCW 27”), of which Babendreier was a member. Their employment relationship is governed by the collective bargaining agreement (the “Agreement” or “Separate Agreements”), effective July 1, 1996, through June 10, 1998, by and between Laurel Park and Pimlico, collectively referred to therein as “Mile Tracks,” and the Union. On or about May 31, 1998, a “Memorandum Agreement” was executed, which included RTPA as an “Employer under the Separate Agreements,” in addition to Laurel Park and Pimlico. 5 The Agreement reads, in pertinent part: ⁵ AGREEMENT These separate Agreements are made and entered into by LAUREL RACING ASSOC., INC., generally known as LAUREL PARK, and THE MARYLAND JOCKEY CLUB OF BALTIMORE CITY, Inc., generally known as a PIM-LICO RACE COURSE (each being referred to as the “Employer” and the two Employers together constituting the Maryland Mile Thoroughbred Race Tracks licensed by the Maryland Racing Commission and being sometimes hereinafter collectively referred to as the “Mile Tracks,”) and UNITED POOD AND COMMERCIAL WORKERS UNION, LOCAL 27 (herein referred to as the “Union”), as of the 1st day of July, 1996.

WITNESSETH In consideration of the mutual promises contained in this Agreement, and for other good and valuable consideration, each Employer agrees with the Union as follows: ARTICLE 4 Seniority Section 1. a. The purpose of seniority is to provide a right of preference in employment measured by length of continuous service with the Employer, including service prior to the effective date of this Agreement. Except as set forth in Section 1(c) of this Article, an employee shall have no preference for work assignment until he has obtained seniority standing as a Regular, Extra or Saturday/Holiday Employee in accordance with Section 2 of this Article. b. All employees shall be considered Probationary Employees at an Employer’s track until they have completed 30 days of work from the date they first began to work at such track.

A Probationary Employee shall have no rights to any work assignment and the decision ⁶ of the Employer in its sole discretion whether or not to give such Probationary Employee any work assignment shall be final. c. All employees who have completed the 30 days probationary work period but have no Regular, Extra or Saturday/Holiday seniority standing shall be placed on a “Days Worked Seniority List” in the order of total days worked for the Employer. The employee with the most days worked shall be selected first for purposes of work assignment. Each department at each Employer’s track shall maintain its own work list and the Mutuel Department at each Employer’s track shall post such list on a weekly basis on its main bulletin board.

Any employee who disputes his order of placement on the Days Worked Seniority List must bring such dispute to the attention of his Department Head on the day the list is posted. Failure by the employee to do so is at the employee’s own risk and the Employer shall have no liability for not having given such employee a work assignment on that or any previous day. e. The most senior employee within a department shall have the right to work on any given day in the department in which he has seniority. (For example, if there are 20 positions in the Parking Department, then the 20 employees with the most Parking Department seniority will be assigned those 20 positions.

The 21st employee according to seniority will not have the right to work before any of the first 20 senior employees.) Thus, on a normal racing day -with the exception of Saturdays and Holidays, job assignments shall be filled as follows: First: by Regular employees. Second: by Extra employees. Third: by Saturday and Holiday employees. Fourth: by employees on the Days Worked Seniority List at the running track. ⁷ Fifth: by any other employees at the sole discretion of the Employer.

ARTICLE 5 Layoffs Section 1. The determination of whether there shall be a layoff is the prerogative of the Employer. If employees in any classification in Schedule A 6 are to be laid off, the Employer shall lay off employees in such classifications in accordance with their departmental seniority; that is, commencing with the employee having the least departmental seniority in the affected classification. Extra Employees shall be laid off before Regular Employees; and, in the case of Saturday/Holiday jobs only, Saturday/Holiday Employees shall be laid off before Extra Employees on regular workdays (i.e., days other than Saturday and Holidays).

However, layoffs out of the Mutuel Department Money Room shall be by sub-departmental seniority, unless this results in the employee not working; then Money Room layoffs shall be by departmental seniority. Section 6. Any Regular Employee who is laid off under this Article shall remain a Regular Employee for the duration of the calendar year in which he is laid off. If he does not work enough days to maintain his Regular seniority, he shall be placed at the top of the Extra list in the following year, and shall then be slotted for the third year onto a seniority list according to the days worked in the previous year.

However, if he is restored to the Regular seniority list within three (B) years after the date of his layoff, his ⁸ seniority as a Regular shall include the seniority he had accrued prior to the date of his layoff, unless he has lost his seniority pursuant to any of reasons 1 through 4 of Section 6 of Article 4. Section 9. When the work force is increased, or when there is work available, following a layoff, the Employer shall recall employees to a classification in the reverse order in which they were laid off, so that the last employee laid off in any classification shall be the first recalled in that classification. Employees who bumped downward, upward or laterally as a result of the layoff shall be returned to their usual classifications in the reverse order in which they bumped during a layoff.

The Agreement did not require Babendreier to report to work each day, did not require appellants to notify employees that work was available on any given day, and did not require employees to inquire about the availability of work. Although no contact was required by either Babendreier or her employer, appellants mailed to all employees a postcard offering work assignments in advance of the Preakness, the Pimlico Special, and the Kentucky Derby. When live racing meets alternate between Laurel Park and Pimlico, each venue utilizes a separate employee seniority list based upon an employee’s period of service at that respective track. When live racing takes place at a particular track, the race is simulcast at the other track and at Rosecroft.

Babendreier primarily worked during the Laurel Park meets, but received work assignments for special events at the Pimlico meets. As a result of her tenure at Laurel Park, Babendreier was designated with “Extra-Employee” seniority, 7 guarantying her work during Laurel Park’s “live racing ⁹ days.” 8 On July 12, 1998, Babendreier was one of eight “bid winners” for positions as “full-time tellers at Rosecroft for the Laurel Meet.” She thereby became a full-time “Regular Employee” on the Laurel Park seniority roster. 9 Babendreier maintained, however, only a “Days Worked” status at Pimlico. 10 As a result, she was not guaranteed work at Pimlico when live meets were held at that track. 11 To be eligible for work at Pimlico, Babendreier, on a day-by-day basis, had to commute to the track, sign in, and wait to see whether her “Days Worked” seniority status provided her with a work assignment. If enough other workers signing in had a higher seniority status, Babendreier risked not being assigned work that day. Between October 1999 and February 20, 2000, during the Laurel Park meets, Babendreier worked at her regularly-scheduled assignment as a teller at Rosecroft.

On or about February 20, 2000, Laurel’s winter meet ended and live racing at Pimlico commenced. Except for the Preakness and the ¹⁰ Pimlico Special stakes race, Babendreier did not seek any Pimlico work assignments. On or about April 1, 2000, Babendreier filed a claim for benefits with DLLR, which RTPA opposed. The claims examiner granted her claim for unemployment benefits on April 25, 2000.

RTPA appealed the claims examiner’s determination to the Division of Appeals. On June 5, 2000, a hearing was held before a DLLR hearing examiner for the purpose of determining Babendreier’s unemployment benefits eligibility. RTPA argued that Babendreier was not entitled to unemployment benefits because she was an active employee, who had failed to make herself “available for work” pursuant to Md.Code Ann. (1991, 1999 Repl.Vol, 2000 Supp.), § 8 — 903(a)(l)(ii) of the Labor and Employment Article (“LE”). RTPA introduced evidence that if Babendreier had traveled to Pimlico and signed-in, she would have been assigned work on “every single Saturday” and many other days during the Pimlico meets.

Babendreier argued that she was not an active employee, based on the transfer of meets from Laurel to Pimlico, and that she had been “laid-off.” She acknowledged that she had not pursued work at Pimlico during its meets. Instead, and rather than commuting sixty miles to Pimlico without any guarantee of receiving a work assignment, she decided to look for full-time work closer to her home. After the hearing, the hearing examiner rendered the following decision: FINDINGS OF FACT The claimant’s benefit year commenced August 24, 1999. The claimant’s week benefit amount is $289.

The employer operates two thoroughbred horseracing tracks in Maryland, Laurel Park and Pimlico. The employer’s premises are open throughout the year. Live racing alternates between the two racing venues. When there is no live racing, simulcast racing is available to patrons attending the racecourse. ¹¹ Each racetrack has a separate seniority list.

When live racing takes place at the Laurel Park, the claimant is guaranteed work due to her seniority status. When live racing shifts to Pimlico, the claimant’s work at Laurel Park ends. Again, the claimant is not guaranteed work at Pimlico, but in order to be eligible for work at Pimlico, the claimant is obligated to report to Pimlico and sign up for work. If work is offered, the claimant is assigned work.

If no work is available, the claimant is not offered work. The claimant receives no compensation for showing up at Pimlico in search of work. After the claimant filed for benefits, the claimant worked from October 12, 1999 through February 21, 2000. Live racing at Laurel Racecourse ended on February 20, 2000.

Thereafter, the claimant worked two other events for her employer. These were special events, the Pimlico Special and the Preakness. Other than these two events, the claimant sought work elsewhere. The claimant lives 60 miles away from the Pimlico racecourse.

The claimant did not report to Pimlico to sign up and see if work was available. The claimant opted to seek work near her home. The claimant has been seeking full-time work. The claimant has been making two job contacts per week as mandated under the law.

The claimant’s reason for not seeking work at Pimlico is because she is not guaranteed work at Pimlico. CONCLUSIONS OF LAW Md.Code Ann., Labor & Emp. Article, Section 8-1003 (Supp.1996) provides for a disqualification from benefits where the claimant is discharged or suspended as a disciplinary measure for misconduct connected with the work. The term “misconduct” is undefined in the statute but has been defined as “... a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee, within the scope of his employment relationship, during hours of employment, or ¹² on the employer’s premises.” Rogers v. Radio Shack, 271 Md. 126, 132 , 314 A.2d 113 (1974).

Md.Code Ann., Labor & Emp. Article, Section 8-903 (Supp. 1996) provides that a claimant for unemployment insurance benefits shall be (1) able to work (2) available for work; and (3) actively seeking work. In Robinson v. Maryland Employment Sec. Bd., 202 Md. 515 , 97 A.2d 300 (1953), the Court of Appeals held that a claimant may not impose restrictions upon his or her willingness to work and still be available as the statute requires. EVALUATION OF EVIDENCE The claimant has not been separated from her position of record.

The claimant is guaranteed work when live racing takes place at Laurel Park. Therefore, the claimant’s separation constitutes a layoff. In a layoff the employer bears the burden of proving, by a preponderance of evidence, that the claimant’s layoff was due to some degree of misconduct on the claimant’s behalf. There is insufficient [evidence] to establish that the claimant’s layoff was due to any degree of misconduct.

The nature of the employer’s business is the reason for the claimant’s layoff status. Based on these facts, there is no degree of misconduct on the claimant’s behalf. Therefore, the Hearing Examiner will reach and rule upon the next issue in this case. In review of the contract agreement between the claimant and her employer, the claimant is guaranteed work only at the Laurel Park.

The claimant is not guaranteed work at the Pimlico racecourse. In review of the documents presented, the claimant is obligated to attend Pimlico and seek work during her layoff status. The credible evidence establishes that the claimant has been seeking full time work opportunities during her layoff status. These opportunities are separate and apart from her seeking work at Pimlico Raceway.

Based on the evidence ¹³ presented, the claimant is in compliance with the above-cited law. If during the claimant’s layoff period, the employer makes the claimant an offer and the claimant refuses the offer, the employer has a remedy under Md.Code Annotated, Labor and Emp. Article, Title 8, Section 1005. DECISION IT IS HELD THAT the claimant was discharged, but not for gross misconduct or misconduct connected with the work, within the meaning of Md.Code Ann., Labor & Emp.

Article, Sections 8-1002 or 8-1003 (Supp.1996). No disqualification is imposed based upon the claimant’s separation from employment with Racetrack Payroll Account. The claimant may contact the local employment office concerning the other eligibility requirements of the law. IT IS HELD THAT the claimant is able, available and actively seeking work within the meaning of Md.Code Ann., Labor & Emp.

Article, Section 8-903 (Supp.1996). Benefits are allowed for the week beginning February 19, 2000 and thereafter, provided that the claimant meets the other eligibility requirements of the Maryland Unemployment Insurance Law. The determination of the Claim Specialist is affirmed. RTPA filed a petition for review with the Board.

On October 19, 2000, the Board affirmed the hearing examiner’s decision. On November 20, 2000, appellants filed in the Circuit Court for Anne Arundel County a petition for judicial review. The Board moved to remand the case to the Board, requesting in its proposed order that the court submit the following questions to a hearing examiner: 12 ¹⁴ (a) Did the labor agreement require the claimant to report to Pimlico Race Course while it was holding live racing? (b) If the labor agreement did require her to report to Pimlico, did her failure to report render her available for work, within the meaning of § 8 — 903(a)(l)(ii), even though reporting to Pimlico did not guarantee that she would get work?

(c) Was the claimant’s failure to report to Pimlico a failure to actively seek work, within the meaning of § 8-903(a)(l)(iii), even though she was seeking work elsewhere? (d) Was there an offer of suitable employment to the claimant from the employer? If so, did the claimant refuse that offer? If so, did she have good cause for the refusal?

Appellants opposed the Board’s motion to remand and sought counsel fees. In its June 6, 2001 opinion and order, the circuit court considered whether Babendreier “was not available for work because she declined to go to Pimlico where she was not guaranteed work.” The court noted: Ms. Babendreier lives sixty miles from Pimlico. The examiner found she had tried to get work elsewhere, including making two contacts per week. However, she didn’t want to go and work where she had low seniority with the understanding she wasn’t guaranteed any work.

We agree that Ms. Babendreier cannot impose unreasonable conditions upon her willingness to work and still be considered available. Robinson v. Maryland Employment Sec. Bd., 202 Md. 515 , 97 A.2d 300 . The Examiner determined that her declining to go to Pimlico was a reasonable conclusion to reach. However, the Board reached a different conclusion on facts that appear to be close to the ones in the Keller case (9-22-99). ¹⁵ If we consider the decision of the Board of Appeals without Keller, we would find substantial justification for the Board’s decision.

If we need to reach our conclusion on the facts and the law, we find that it is not reasonable to make her go to Pimlico for work that does not necessarily exist. There is an argument as to who should have called whom to see if there was work. Our understanding is that she had to show up and take her chances, but if there was work the employer could [have] certainly called her and cut its losses. The Board moved to remand.

Upon our ruling, we don’t believe that [it] is necessary. However, there was a reasonable possibility that the remand might have been necessary; we reject any claim of lack of substantial justification, and award no fees. Accordingly, it is this [31st] day of May, 2001 ORDERED that the decision of the Board of Appeals is affirmed. Appellant to pay costs. [Emphasis in original.] Appellants filed a notice of appeal on July 3, 2001.

STANDARD OF REVIEW The scope of judicial review of a determination by the Board in an unemployment compensation insurance case is set forth in § 8 — 512(d): “Scope of review. — In a judicial proceeding under this section, findings of fact of the Board of Appeals are conclusive and the jurisdiction of the court is confined to questions of law