REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0933
SEPTEMBER TERM, 2001
LAUREL RACING ASSOCIATION
LIMITED PARTNERSHIP ET AL.
v.
JOSEPHA M. BABENDREIER ET AL.
Kenney,
Krauser,
Bloom, Theodore G., (Ret'd,
specially assigned),
JJ.
Opinion by Kenney, J.
Filed: September 3, 2002
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 Babendreier, 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
Babendreier was eligible for unemployment benefits. We have
consolidated and reworded appellant's questions for review as
follows:3
1 Laurel Racing and MJC were not parties to the unemployment proceedings before the
Department of Labor, Licensing and Regulation, but joined RTPA as petitioners before the
Circuit Court for Anne Arundel County. They claim standing based upon the collective
bargaining agreement they entered into with the United Food and Commercial Workers Union,
Local 27.
2 The Board filed a response to RTPA's petition for judicial review before the circuit
court and a brief in this appeal. Md. Code Ann. (1991, 1999 Repl. Vol., 2000 Supp.), § 8-
512(a)(3) of the Labor and Employment Article ("LE"), provides: "The Board of Appeals may be
a party to an appeal under this section and may be represented by the Attorney General[.] "
3 Appellants presented the following questions:
I. Did the Circuit Court exceed its authority by affirming the
Board's Decision on a ground that was not relied on by the
Hearing Examiner?
II. Did the Circuit Judge err by failing to address the
Appellants' argument concerning the arbitrary nature of the
Board's decision, and by failing to find the agency's action
arbitrary in light of its directly inconsistent decision in
Keller?
III. Did the Circuit Judge and the Board of Appeals err by
finding that Appellee Babendreier was eligible for
unemployment benefits, despite her failure to be fully
available to work as required by the Court of Appeals'
Decision in Robinson?
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Did the Board err in concluding that
Babendreier was "available" for work pursuant
to the Labor & Employment Article, § 8-
903(a)(1)(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
Babendreier presented the question as follows:
Did the UI claimant, Josepha M. Babendreier, satisfy her
obligation under Lab. & Employ. § 8-903(a)(1)(iii) to be "actively
seeking work" when she applied for full-time employment at least
twice each week with prospective employers nearby her home,
although she did not travel 60 miles a day from her home in
Damascus, [Maryland,] to the Employer's "live track" at Pimlico
Race Course to sign-in to apply for work each day of the
Employer's race meet?
The Board posed the question as follows:
Based upon the undisputed facts found by the agency, could a
reasoning mind reasonably conclude that Babendreier was
available for work within the meaning of § 8-903(a)(1)(iii)?
4 A mutuel teller accepts bets from patrons. These tellers are all unionized and have a
specified seniority system.
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(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:
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 PIMLICO 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
FOOD 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:
5 The "Memorandum Agreement" also extended the effective date of the Agreement
"through and including June 30, 2000," and included a provision regarding seniority for any
"Regular Employee" assigned to work at Rosecroft Raceway, but who elected to sign-in at either
Laurel Park or Pimlico.
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* * *
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 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
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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: b y R e g u l a r
employees.
Second: by Extra employees.
Third: by Saturday and
Holiday employees.
Fourth: by employees on the
D a y s W o r k e d
Seniority List at
the running track.
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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
S a t u r d a y / H o l i d a y j o b s o n l y ,
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
6 Babendreier was a Schedule A employee.
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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 (3) years after the date of
his layoff, his 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
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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 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
7 An "Extra Employee" "refers to an employee who has attained and continuously
maintains Regular Seniority standing under the terms of Article 4" of the Agreement.
8 "[L]ive racing days" and "racing days" are defined in the Agreement as "any days on
which live or live and simulcast racing is conducted by the Employer." Live racing days are
assigned to MJC entities by the Maryland Racing Commission and are grouped into "meets."
9 On February 21, 2000, a bid was posted for three full-time teller positions at Rosecroft
for the "Pimlico at Laurel Meet." One of the bid winners, Judy O'Haver, was a "Days Worked"
employee with a Union date of October 28, 1998. On March 24, 2000, a subsequent bid was
posted for seven full-time tellers at Rosecroft for the Pimlico meet. In both instances,
Babendreier failed to apply for the vacant positions, although she was almost assured of being
awarded either bid. This evidence was offered by appellants to prove that work was available to
Babendreier for the Pimlico meets, but that she failed to accept guaranteed work assignments.
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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 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
10 The record indicates that as of May 21, 2000, Babendreier was ranked 17th on the
Pimlico "Days Worked" list, with 121 days worked at Pimlico during her twenty years of
employment.
11 "Days Worked Seniority List Employee" is defined in the Agreement as "an employee
who has completed his [or her] thirty day probationary period but has not attained or has not
continuously maintained Saturday/Holiday, Extra or Regular Seniority standing under the term of
Article 4."
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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)(1)(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 $239. 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.
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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
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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
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.
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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 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
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remand the case to the Board, requesting in its proposed order that
the court submit the following questions to a hearing examiner:12
(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)(1)(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)(1)(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:
12 These questions appeared in the proposed order, whereas the motion contained the
following questions:
(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 unavailable for work
even though reporting to the track did not guarantee that she would
get work?
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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. 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).
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
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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 if:
(1) findings of fact are
supported by evidence
that is competent,
material, and substantial
in view of the entire
record; and
(2) there is no fraud.
Under this statute, the reviewing court shall
determine only: "(1) the legality of the
decision and (2) whether there was substantial
evidence from the record as a whole to support
the decision." The reviewing court may not
reject a decision of the Board supported by
substantial evidence unless that decision is
wrong as a matter of law. The test for
determining whether the Board's findings of
fact are supported by substantial evidence is
whether reasoning minds could reach the same
conclusion from the facts relied upon by the
Board. [Citations omitted.]
Department of Labor, Licensing & Regulation v. Hider, 349 Md. 71,
77-78, 706 A.2d 1073 (1998).
If, however, we find "no substantial or sufficient evidence to
support the factual findings of the Board, the Board's decision
will be reversed because it was arbitrary and illegal." Eastern
Outdoor Adver. Co. v. Mayor & City Council of Baltimore, 128 Md.
App. 494, 515, 739 A.2d 854 (1999), cert. denied, 358 Md. 163, 747
A.2d 644 (2000). The substantial evidence test is an "assessment
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of whether the record before the Board contained at least `a little
more than a scintilla of evidence' to support the Board's
scrutinized action." Friends of the Ridge v. Baltimore Gas & Elec.
Co., 120 Md. App. 444, 466, 707 A.2d 866 (1998), vacated in part,
352 Md. 645, 724 A.2d 34 (1999) (citation omitted). The existence
of substantial evidence "pushes the Board's decision into the
unassailable realm of a judgment call, one for which we may not
substitute our own exercise of discretion." Friends of the Ridge,
120 Md. App. at 466.
DISCUSSION
Appellants claim that Babendreier was unavailable for work by
refusing to sign in at Pimlico and wait for an opportunity to
receive a work assignment. Appellants contend that, by her failure
to do so, she imposed conditions and limitations on her willingness
to work and therefore was not "available for work" pursuant to LE
§ 8-903(a)(1)(ii). In addition, they contend that the Board acted
in an arbitrary manner in reaching an opposite conclusion than it
reached in Keller v. Race Track Payroll Account, Inc., No. 2876-BR-
99 (1999).
Appellees argue that the Board properly held that Babendreier
was "available" for work within the meaning of the unemployment
eligibility statute. They claim this decision was both legally
correct and supported by substantial evidence in the record. They
further assert that if Babendreier would be "required to make
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herself available to a specific employer, whether or not that
employer could ensure that she would be given work[,]" she would
thereby limit her chances to interview for and accept other
employment. In other words, if she made herself available to the
appellants for work that was not guaranteed, she would not be
available to the rest of the employment market.
Maryland's unemployment insurance law is remedial in nature
and is intended to prevent economic insecurity and alleviate the
consequences of "involuntary unemployment and economic distress."
Johns Hopkins Univ. v. Board of Labor, 134 Md. App. 653, 659, 761
A.2d 350 (2000); see LE § 8-102.13 An individual is considered to
13 LE § 8-102 provides:
(a) Interpretation and application. This section is a guide to the interpretation and
application of this title.
(b) Findings. The General Assembly finds that:
(1) economic insecurity due to unemployment is a serious menace to the health,
morals, and welfare of the people of the State;
(2) involuntary unemployment is a subject of general interest and concern that
requires appropriate action by the General Assembly to prevent the spread of involuntary
unemployment and to lighten its burden, which often falls with crushing force on the
unemployed worker and the family of the unemployed worker;
(3) the achievement of security for society requires protection against involuntary
unemployment, which is the greatest hazard of our economic lives; and
(4) security for society can be provided by encouraging employers to provide
more stable employment and by the systematic accumulation of funds during periods of
employment to provide benefits for periods of unemployment, maintaining the purchasing power,
and limiting the serious social consequences of poor relief assistance.
(c) Statement of policy. The General Assembly declares that, in its considered
judgment, the public good and the general welfare of the citizens of the State require the
enactment of this title, under the police powers of the State, for the compulsory setting aside of
unemployment reserves to be used for the benefit of individuals unemployed through no fault of
their own.
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be unemployed in any week during which the individual:
(1) does not perform work for which wages
are payable; or
(2) performs less than full-time work for
which wages payable are less than the weekly
benefit amount that would be assigned to the
individual plus allowances for dependants.
LE § 8-801(b). Eligibility for individual unemployment benefits
requires, in pertinent part:
(a) In general. (1) Except as otherwise
provided in this section, to be eligible for
benefits an individual shall be:
(i) able to work;
(ii) available for work; and
(iii) actively seeking work.
(2) In determining whether an individual
actively is seeking work, the Secretary shall
consider:
(i) whether the individual has made an
effort that is reasonable and that would be
expected of an unemployed individual who
honestly is looking for work; and
(ii) the extent of the effort in relation
to the labor market conditions in the area in
which the individual is seeking work.
[Emphasis added.]
LE § 8-903.
That Babendreier was "able to" and was "actively seeking" work
is not contested. The record indicates that she pursued at least
two jobs per week, as required by law. The pivotal issue is
whether she was "available for work" when she did not seek non-
guaranteed work assignments during the Pimlico meet.
Appellants argue that we should reverse the Board's decision
because it did not follow the result that it reached in Keller,
-20-
supra. In that case, Keller, a "Saturday/Holiday Employee"14 at
Laurel Park and a "Regular Employee" at Pimlico, was disqualified
from receiving unemployment benefits because she did not seek work
at Laurel Park on days other than Saturdays and holidays. Keller,
like Babendreier, did not seek work on additional days because the
work was not guaranteed.15 The hearing examiner in Keller noted
that, "there is sufficient evidence to show that the claimant could
reasonably have expected to work more than one day per week had she
made the attempt. For this reason, it does not appear proper to
find that [Keller] is working all available hours." The hearing
examiner went on to conclude that "the claimant is not fully able,
available, and actively seeking work" within the meaning of LE § 8-
903(a)(1), and therefore, she was denied unemployment benefits
"until such time as claimant meets the requirements of the law and
demonstrates that her attempts to work would be unavailing." The
Board affirmed that decision, pursuant to COMAR 09.32.06.04.A ("The
Board may deny a petition for review if it agrees with the decision
of the hearing examiner.").
We are unpersuaded by appellants' argument that the Board was
bound by the Keller decision, either factually or as precedent,16
14 The term "Saturday/Holiday Employee" is defined in the Agreement as "an employee
who attained and continuously maintains Saturday/Holiday Seniority standing under Article 4[,]"
supra.
15 The record does not reflect whether Keller sought other full-time work.
16 See COMAR 09.32.06.03.C., infra.
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as to render its decision in this case arbitrary and capricious.
Keller sought employment at the Laurel Park meet, but limited her
availability to Saturdays and holidays, the days for which she held
seniority status. Babendreier, on the other hand, declined to work
the entire Pimlico meet. Keller, as a "Saturday/Holiday Employee"
at Laurel Park, held a higher seniority status than Babendreier, a
"Days Worked" employee at Pimlico. Consequently, Keller had a
greater guarantee of receiving a work assignment than had
Babendreier.
Moreover, only "[d]ecisions of the Board of Appeals designated
as precedent by the Board constitute legal precedent for the
hearing examiner's decisions." COMAR 09.32.06.03.C. The Board's
decisions are somewhat analogous to our unreported opinions.
Maryland Rule 8-114(a) states that "[a]n unreported opinion of the
Court of Appeals or Court of Special Appeals is neither precedent
within the rule of stare decisis nor persuasive authority."
Therefore, the Board did not err by declining to treat Keller as
precedent.
Appellants contend that the Keller decision was based on
Robinson v. Maryland Employment Sec. Board, 202 Md. 515, 97 A.2d
300 (1953), in which the Court of Appeals noted that
[t]he purpose the [unemployment] law is
designed to achieve, of protection against
involuntary unemployment, is not frustrated by
an interpretation that one who will work from
11:00 A.M. to 3:00 P.M. only has restricted
her utility and desirability in the labor
-22-
market to a point where she cannot be held to
be "available" as that word is used in the
context of the statute.
Robinson, 202 Md. at 522. The Court went on to hold that for an
individual to be found unavailable, he or she must place
restrictions on the days, time, place, or conditions of employment.
The Court concluded that a cafeteria operator, laid off by her
employer because of a reduction in staff, was unavailable for work
when she restricted the hours during which she was willing to work.
Here, Babendreier stated that she was available to work if
appellants contacted her, i.e., if work was available. We do not
believe that her request for notice of available work was
equivalent to the general restriction Robinson placed on her
employment.
In addition, in Maryland Employment Sec. Bd. v. Poorbaugh, 195
Md. 197, 72 A.2d 753 (1950), cited by the Board, the Court of
Appeals considered three separate unemployment benefits claims. In
all three instances, the Court held that the Board's denial of
unemployment benefits was legally correct, basing its decision on
the respective parties' failure to look for work or accept an offer
to work. The Court stated:
A review of the testimony in the instant
cases shows clearly that there was evidence to
support the Board's findings. Mrs. Poorbaugh
received a maternity leave, and at the time
she registered with the Employment Service was
fully occupied in taking care of her child.
There was no evidence that she had made any
effort to procure work, other than to "watch
-23-
the ads." Mr. Feaster, whose employer
contended that he had voluntarily quit his
job, admitted that he [was] laid off because
of the cold weather. The employer sent him
word that if he didn't report "for work
tomorrow he wasn't going to have any more
work", but he did not report until about four
months later, a month after he filed his
claim. Mrs. Merbaugh was employed as a
messenger. She resigned her job to get
married. Under a rule of the Company[,]
married women were not employed as messengers.
She applied for a transfer to another
department, but there was no vacancy. She
admitted that since her marriage she had not
applied for work elsewhere.
Since there was evidence to support the
Board's findings and no suggestion of fraud,
the court erred in attempting to substitute
its judgment for that of the Board.
Poorbaugh, 195 Md. at 199-200. Again, we do not find these
circumstances analogous to the present case. Here, the evidence
supports the finding that Babendreier was laid off when live racing
ended at Laurel Park, that she had not been offered a guaranteed
employment opportunity at Pimlico, and that she was actively
seeking work.
Appellants direct us to GTE Products Corp. v. Unemployment
Compensation Bd. of Review, 141 Pa. Commw. 628, 596 A.2d 1172 (Pa.
Commw. Ct. 1991), in which a claimant for unemployment benefits
worked for an employer who ceased production for a summer shutdown,
lasting approximately one month. GTE, 596 A.2d at 1172-73. The
employer encouraged its employees to take their vacation time
during the shutdown period, but posted a sign-up sheet for
employees interested in working during the shutdown. Id. at 1173.
-24-
If an employee was available for work during the shutdown period,
the employer would approve a request for vacation time during the
remaining portion of the year. Id. Unlike, Babendreier, however,
the claimant, who had previously used her vacation time, did not
make herself available for guaranteed work with her employer during
the shutdown period.
In re Beatty, 286 N.C. 226, 210 S.E.2d 193 (1974), cited by
the Board, however, is instructive. In Beatty, 126 longshoremen
were deemed ineligible for unemployment benefits based upon a
provision in their collective bargaining agreement, which required
the longshoremen to report to work between 6:00 a.m. and 7:30 a.m.,
and if no work was available by 8:15 a.m., they could go to a part-
time job. That agreement also provided supplemental benefits to
those employees who were union members and sought employment, but
who were unable to obtain a part-time job. The Supreme Court of
North Carolina affirmed the decision of the Employment Security
Commission that the claimants were not available for work because
the reporting requirement effectively took the claimants out of the
job market.
In this case, Babendreier, like the longshoremen, would have
effectively removed herself from the labor market by reporting to
Pimlico each day. What distinguishes Beatty from this case is that
the agreement entered into by the longshoreman required them to
report to work each day to be eligible for supplemental income
-25-
benefits available to union members who were unable to work part-
time jobs. Babendreier, on the other hand, was not required by
contract to report daily to Pimlico, received no compensation for
reporting to Pimlico, and was not guaranteed any work there.
The Board affirmed its hearing examiner's finding that
Babendreier was laid off from her employment at Laurel Park because
of the nature of the employer's business and not because of
misconduct, and that she was "available for work" pursuant to LE §
8-903(a)(1)(ii), despite refusing to commute sixty miles to Pimlico
and await a non-guaranteed work assignment. Had she spent many
hours commuting to and waiting at Pimlico for a non-guaranteed work
assignment, she would have been "unavailable" to other potential
employers. We conclude that the Board's decision is supported by
substantial evidence and is not wrong as a matter of law. We
therefore affirm the Board's decision granting Babendreier
unemployment benefits.
JUDGMENT AFFIRMED.
COST TO BE PAID BY APPELLANTS.