Board of Review v. Mid-Continent Petroleum Corp.

1943 OK 201, 141 P.2d 69, 193 Okla. 36, 1943 Okla. LEXIS 302

• Court: Supreme Court of Oklahoma
• Decided: May 25, 1943
• Docket: No. 29937.
• Status: Published

Opinions

GIBSON, V. C. J.

This action was instituted in the district court of Tulsa county by Mid-Continent Petroleum Corporation against the Board of Review and William R. Cox to review an order of said board awarding Cóx unemployment compensation pursuant to the Unemployment Compensation Law of 1936 (ch. 52, S. L. 1936). The court vacated the order of the boárd, and this appeal followed (sec. 6).

In January, 1939, Cox filed his claim for compensation With the proper authorities, naming said corporation as his last employer (sec. 7 (c)), and stating the reasons for his separation from his employment to be “out on strike. Received letter dismissal.”

On February 1, 1939, the claims deputy of the State Labor Department, acting pursuant to his authority under the act, disallowed the claim for the duration of the strike. Subsequently, the Board of Review, after hearing evidence, reversed the action of the claims deputy and entered its order of award as above stated. Thereupon the corporation instituted this proceeding in district court for a judicial review of the order (sec. 6 (h)).

The cause was heard and determined on the record and evidence transcribed from the board.

The ground assigned by the corporation in contesting Cox’s claim for compensation was that his unemployment was due wholly to stoppage of work occasioned by a labor dispute at the company’s plant where he had been employed, and not to any discharge by the corporation, all of which, it is alleged, disqualified Cox for any benefits under the act. Sec. 5 (c) (2) (d), parags. 1, 2.

Said section 5 is in part as follows:

“Section 5. An individual shall be disqualified for benefits: . . .

“(2) (d) For any week in which it is found by the Commissioner that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the Commissioner that:

“1. He is not participating in or financing or directly interested in the labor dispute which cause the stoppage of work; . . .”

According to language of the act, refusal to accept employment, which is a disqualification, may be excused even if the “unemployment is due to a stoppage of work which exists because of a labor dispute at the factory ... at which he is or was last employed,” unless the claimant participates in, finances, or is directly interested “in the labor dispute which cause the stoppage of work.” In other words, the individual cannot receive benefits so long as his unemployment is due to a stoppage of work which exists because of a labor dispute in which he is participating.

The record shows that Cox was unemployed because of a labor dispute in which he was engaged. He and some 200 other employees of the corporation went out on strike; and the evidence is that he would not have accepted employment with the corporation had employment been offered him. Such was the finding of the district court. And there was no evidence to the contrary sufficient to support the order of the Board of Review.

But, Cox insists that his right to benefit is not impaired by those facts for the reason that under the provisions of the act, supra, he is not to be so denied unless the labor dispute caused a stoppage of work at the plant, a substantial shutdown, where the strike took place. In this respect it is urged that no substantial stoppage of work or' shutdown took place, but, instead, the plant continued to operate at its normal capacity.

It is further urged that since the plant was not shut down, and Cox had complied with all other requirements of the act, such as offering his application for other work, etc., he is clearly entitled to compensation.

The Attorney General, who appears for the Board of Review (6 (h)), does not share the above views as propounded by Cox’s counsel. The Board of Review, says the Attorney General, allowed Cox compensation on the ground that the letter of dismissal mentioned in Cox’s claim and dated January 5, 1939, constituted a discharge entitling Cox to compensation after that date and so long as he complied with other requirements of the act. The Attorney General’s views are thus briefly stated by him:

“ . . . The Board of Review under the Oklahoma Unemployment Compensation Law (article 2, chapter 52, Oklahoma Session Laws 1939), during 1939, decided two groups of cases involving approximately two hundred claimants in each group that arose out of a certain labor dispute at the refinery of the Mid-Continent Petroleum Corporation, and in which the Mid-Continent Petroleum Corporation was the last employer.

“In one group of these cases of which Burgin v. Board of Review et al. (No. 29979 in this court) is a representative case, the Board of Review, and, in turn, the district court on appeal, denied to the claimants benefits under the Oklahoma Unemployment Compensation Law by reason of section 5 (c) (2) (d), chapter 52, Oklahoma Session Laws 1936, which, provides:

“ ‘An individual shall be disqualified for benefits: . . .

“ ‘(2) (d) For any week in which it is found by the Commissioner that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the Commissioner that: . . .’

“In the other group of cases of which the above captioned cause is a representative case, the Board of Review allowed the claimants benefits by reason of a certain letter written by the Mid-Coninent Petroleum Corporation to the claimants involved on January 5, 1939. (See page 11 of defendant in error’s brief.)

“The lower court in the Burgin Case sustained the decision of the Board of Review in disallowing benefits, and in effect held that ‘stoppage of work’ as used in section 5 (c) (2) (d), supra, referred to stoppage by the claimant or worker, and not to stoppage at the factory, establishment or other premises at which the claimant or worker was last employed. '

“During the trial of the case the attorneys for the claimants or workers took the position that the term ‘stoppage of work’ as contained in section 5 (c) (2) (d), supra, referred to ‘stoppage of work’ at the factory, establishment or other premises at which the claimant or worker was last employed.

“In the Cox Case (as in the Burgin Case) the Attorney General appeared in district court on behalf of the Board of Review, and in support of the board’s decision took the position that the aforementioned letter written by the Mid-Continent Petroleum Corporation on January 5, 1939, constituted a letter of discharge and that therefore the claimants or workers were rightfully entitled to benefits.

“The attorneys for the claimants or workers also took the position in this case, as in the Burgin Case, that they were entitled to benefits by reason of the meaning of the term ‘stoppage of work’ as used in section 5 (c) (2) (d), supra, even if the aforementioned letter could not be construed to be a letter of discharge. It is upon this point that the Attorney General cannot sanction and here specifically disclaims the statement and the logic of counsel for plaintiff in error, Cox. We never at any time took such a stand, and do not now. . . .”

Considering first the question whether “stoppage of work” as used in the act refers to the individual work of the employee or to the operation of the plant, we agree fully with the position of the corporation and the Attorney General that the provision refers to the individual work of the employee.

Counsel for Cox state that administrative officers and text writers say that “stoppage of work,” as used in similar statutes of other states and in Great Britain, means a shutdown at the factory where the workman was employed. Thus they arrive at the conclusion that unless the plant actually stops operation by reason of the labor dispute, the striker who remains out may receive compensation for unemployment. Their conclusion is not supported by the decision of any court of last resort to which our attention has been called.

The reasoning of the foregoing officers and writers is not very impressive when applied to our own Act of 1936. Had the Legislature intended to refer to the shutdown of the plant and not to the cessation of work by the employee, the term “stoppage of operation” would have been far more appropriate. It seems to us that the word “work” ordinarily refers to or comprehends the activities of the workman, not the operation of a factory. That portion of the act, supra, which disqualifies a workman for benefits “for any week in which . . . his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory” refers, with respect to the workman, to his unemployment and to his stoppage of work. A strike in the labor sense is generally defined as a stoppage of work by common agreement of workingmen. 15 C.J.S. 1008, § 11. That Was the definition evidently in the mind of the Legislature; the term “stoppage of work” was considered as synonymous with “strike.”

Were we to adopt the view of Cox’s counsel, we should hold that the Legislature intended that the unemployment fund be used to support strikes. There is nothing in the act to indicate such an intention. Witness the' purpose of the act as therein declared:

“For the compulsory setting aside of unemployment compensation funds to be used for the benefit of persons unemployed through no fault of their own.”

Whether a person in good health and in possession of his faculties is ever unemployed through no fault of his own has long been a topic of heated debate, but, regardless of the disagreement that invariably arises in such case, one who is out on strike can hardly be said to be unemployed through no fault of his own. Whether his cause is just or unjust is beside the point.

In Walter Bledsoe Coal Co. v. Review Board, etc., 46 N.E. 2d 477, the Supreme Court of Indiana, in paragraph 2 of the syllabus, held as follows:

“The word ‘fault’ as used in section of Employment Security Act declaring the purpose of the Act to be to provide benefits for persons unemployed through no fault of their own, etc., does not mean something worthy of censure, or that under wartime conditions a person with regular employment with which he has been satisfied may voluntarily quit work and seek higher pay and receive benefits until he finds a position more to his liking or decides to return to his previous employment, but means failure or volition. Burns’ Ann. St., secs. 52-1501.”

And in the opinion it was said: cause of a failure of their employers to accede to demands for higher wages. . . .

“Appellees say that the word ‘fault’ means ‘something worthy of censure.’ We cannot believe that the word as used in the statute was intended to have such a meaning. We cannot believe that it was intended that, under wartime conditions such as now exist, a person with regular employment with which he has been satisfied may voluntarily quit work and go forth seeking higher pay in a munitions factory, and make claim-for and receive compensation benefits until he finds a position more to his liking or decides to return to his previous employment. It must be concluded that such unemployment did not occur through no fault of his own. Thus ‘fault’ must be construed as meaning failure or volition. This construction is consistent with the provision that there shall be no benefits paid if unemployment is due to a stoppage of work because of a laior dispute. It is perfectly legal for employees to contend for better wages and working conditions and to refuse work if their demands are not complied with, and it cannot legally be said that such action is worthy of censure or that it constitutes wrongdoing. It must be concluded that the purpose of the act was to provide benefits to those who were involuntarily out of employment, and not to finance those who were willingly and deliberately refusing to work be-

“While we have not before been called upon to consider this statute, the question is not new, and has been passed upon in many states where the statutes are substantially identical, and in cases in which the facts are substantially identical with those of the case at bar. We find strong support for the conclusion we have reached in the language of the opinions. See Ex parte Pesnell (1940) 240 Ala. 457, 199 So. 726; Department of Industrial Relations v. Pesnell (1940) 29 Ala. App. 528, 199 So. 720, certiorari denied by United States Supreme Court, 313 U. S. 590, 61 S. Ct. 1113, 85 L. Ed. 1545; Barnes et al. v. Hall (1941) 285 Ky. 160, 146 S. W. 2d 929; Miners in General Group et al. v. Hix et al. (1941) 123 W. Va. 637, 17 S. E. 2d 810; Dallas Fuel Co. v. Horne et al. (1941) 230 Iowa, 1148, 300 N. W. 303; Block Coal & Coke Co. et al. v. United Mine Workers et al. (1941) 177 Tenn. 247, 148 S. W. 2d 364, 149 S. W. 2d 469 ... ”

In Knox Consol. Coal Corp. v. Review Board (Ind. A.) 43 N. E. 2d 1019, the Appellate Court of Indiana held:

“The purpose of the Employment Security Act is to promote the general welfare by protecting the homes and families of those who become unemployed through no fault of their own, and the section providing that an individual shall be ineligible for benefits for any week with respect to which unemployment is due to a stoppage of work which exists because of a labor dispute at the factory at which he was last employed intends to withhold benefits of the act from those who bring about their own unemployment by bringing about or participating in a labor dispute. Burns’ Ann. St. secs. 52-1501, 52-1506(f) (3).”

The amicus curiae brief cites two judicial decisions that would appear to support Cox’s argument. One is by an inferior trial court in Oregon; the other by an inferior trial court in Washington. But the decisions of courts of appellate jurisdiction, or of last resort, to which our attention has been called, express a contrary view. Miners in General Group v. Hix (W. Va.) 17 S. E. 2d 810; Bodinson Mfg. Co. v. California Employment Commission (Cal. App.) 101 P. 2d 165.

The Miners Case, above, holds that the words “stoppage of work is due to labor dispute” apply to the individual worker and, generally, a labor dispute can exist only between individual workers and their employer. In this case the large mines affected were closed down except for maintenance work, but some of the smaller mines continued to operate.

The California statute which was involved in the Bodinson Case, above, is not entirely like our own. Under that statute an individual is not eligible for benefits if he left his work because of a trade dispute, not because of a stoppage of work caused by a labor dispute. The case is authority for the proposition that an individual is not eligible for benefits so long as he remains unemployed by reason of a labor dispute in which he is engaged.

The case of In re Steelman, 219 N. C. 306, 13 S. E. 2d 544, involved a statute identical in language with our own. The court held that strikers were not entitled to benefits so long as they remained on strike and the plant remained idle. The court took the attitude that strikers who remained idle after the plant resumed operations might become eligible for benefits; that the question depended upon the circumstances in each individual case, and was for the original determination of the commission. The question was not before the court for determination. It was there said that the commission must first pass on the merits of each case. The court’s attitude seemed to be that if the striker remained unemployed after the plant resumed operations, he might be entitled to benefits under the act if he was unemployed “through no fault of his own.” The question here under consideration actually was not determined by the court.

Section -4 of the act in question is, in part, as follows:

“Section 4. An unemployed individual shall be eligible to receive benefits with respect to any week only if the commissioner finds that: . . “(c) He is able to work, and is available for work.”

In the circumstances of this case we do not think it can be said that the claimant Cox was “available for work.” He had left his employment voluntarily; he remained away from it of his own volition and would not return to work except upon such terms and under such conditions as he might name and stipulate.

We now consider the letter of January 1, 1939, allegedly dismissing Cox, and the effect thereof with reference to his status as an unemployed individual within the meaning of the act. The board’s decision awarding benefits to Cox was based on that letter. Its opinion was that the purpose and effect thereof was to discharge him from further services with the company, 'and that he thereupon became eligible for benefits under the act as an unemployed individual.

The letter stated that the corporation had decided to discharge each and every employee who, in connection with the strike, had committed criminal offenses of a designated character, and continued as follows:

“We have been furnished with convincing evidence that you are guilty of having committed one or more of the above acts, and therefore, this is to notify you that you are hereby disiharged, for cause, as an employee of the Mid-Continent Petroleum Corporation.

“In reaching the conclusion to discharge you, we have not taken into consideration the fact, if it is a fact, that you are affiliated with any Union; and we have fully considered and recognized the fact of your legal right to participate in the present strike, to lawfully picket, and to engaged in any and all other lawful acts for the accomplishment of the purpose or purposes of said strike.

“If you have any reason to question the evidence upon which we have based your discharge, you may either personally or through your representative interview your department head or superintendent and we will be glad to rectify any error which we might have made.”

It is urged that the letter was merely a conditional dismissal, plainly in conformity with the contract existing between Cox’s union and the corporation wherein it is provided that “an employee is subject to dismissal for cause’. He will be informed of the reason of such dismissal and given the opportunity, either - personally or through his representative, to interview his department head or superintendent.” Appeals to the general management of the company were authorized.

Cox made no attempt to comply with the letter or to defend himself against the’accusations therein. No hearing was ever had or requested, and the dismissal remained incomplete, and was never determined according to the provisions of the union contract.

We fail to see how Cox, in the face of those circumstances, can claim that he was discharged. The letter had nothing to do with his unemployment; that was, and continued to be, the result of the labor dispute in which Cox was engaged. And, under the statute, so long' as that condition exists, Cox cannot receive benefits.

Though the letter did not constitute a discharge, Cox was at liberty to resign and thereupon consider his employment at an end at any time. He now says that his employment did end with the letter; that he considered himself dismissed. But his subsequent actions will not substantiate the assertion that he ceased to be an employee. He was out on strike against the corporation, and a strike can take place and be carried on only by an employee against his employer. In the face of the record before us, the conclusion is inescapable that Cox first was without work by reason of a labor dispute between him and his employer, and that he continued as a party to such dispute up to the time his claim was heard by the board.

It is further urged that Cox, in any event, may not be denied benefits for more than five weeks if he voluntarily ceased working (sec. 5 (a)), or for more than nine weeks if he was discharged for misconduct (sec. 5 (b). But those two subdivisions contemplate a severance of the relationship of employer and employee.

Since Cox at all times was participating in the labor dispute which caused the stoppage of work, he was not eligible for benefits under the act. The evidence was not sufficient to support the order of the Board of Review to the contrary (sec. 6 (i)).

The judgment of the district court is affirmed.

CORN, C. J., and OSBORN, BAY-LESS, WELCH, and HURST, JJ., concur. DAVISON, J., concurs specially. RILEY and ARNOLD, JJ., dissent. '