Abbott v. Appeal Bd. of Mich. Unemployment Comp. Comm'n

• Decision Date: 12 November 1948
• Docket Number: No. 50.,50.
• Citation: 323 Mich. 32,34 N.W.2d 542
• Parties: ABBOTT et al. v. APPEAL BOARD OF MICHIGAN UNEMPLOYMENT COMPENSATION COMMISSION et al.
• Court: Michigan Supreme Court

323 Mich. 32

34 N.W.2d 542

ABBOTT et al.

v.APPEAL BOARD OF MICHIGAN UNEMPLOYMENT COMPENSATION COMMISSION et al.

No. 50.

Supreme Court of Michigan.

Nov. 12, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Muskegon County; Joseph F. Sanford, judge.

Unemployment compensation proceeding by Viola Abbott and others opposed by Norge Division, Borg-Warner Corporation. The Circuit Court on certiorari reviewed and reversed the determination of the Appeal Board of the Unemployment Compensation Commission denying compensation, and the Norge Division, Borg-Warner Corporation appeals.

Judgment of Circuit Court reversed, determination of Appeal Board affirmed, and case remanded to Unemployment Compensation Commission.

CARR and BUSHNELL, JJ., dissenting.

Before the Entire Bench.

George D. Stribley, of Muskegon, for plaintiff-claimants-appellees.

Glenn M. Coulter, of Detroit (Jack Newcombe, of Detroit, of counsel), for Norge Division, Borg-Warner Corporation, defendant-appellant.

Edmund E. Shepherd, Sol. Gen., of Lansing, and Arthur W. Brown, Sp. Asst. Atty. Gen., for appellee.

NORTH, Justice.

In this case the circuit judge of Muskegon county on certiorari reviewed and reversed the determination of the appeal board of the Michigan Unemployment Compensation Commission which had held that plaintiffs' unemployment from September 29 to November 12, 1945, was due to a labor dispute in the establishment in which they were last employed, and therefore they were not entitled to unemployment compensation during that period. On the appeal to this Court Mr. Justice Carr has written for affirmance. I disagree and am of the opinion that the circuit judge erred in reversing the appeal board's determination on the ground that it was ‘contrary to the great weight of the evidence.’ Careful review of the record brings the conclusion that the judgment entered in the circuit court should be reversed instead of being affirmed.

The facts as stated in Mr. Justice Carr's opinion need not be repeated, but a partial review of the testimony in the light of which the appeal board reached its decision is necessary. In a large measure the pertinent facts were stipulated, but the record thus made was supplemented by the testimony of Mr. John C. Buchanan, who for nearly two years preceding the strike, which began September 8 and ended November 12, 1945, was the manager of appellant's Muskegon Heights plant where the labor trouble occurred. We summarize the pertinent portion of Mr. Buchanan's testimony as briefly as possible. In substance he testified as follows.

I have been the manager of the Muskegon Heights plant since October 3, 1943. I am acquainted with the reconversion work that was being done in that plant in 1945. The regular employes of our plant were performing the reconversion work in cases where they were qualified to do so; but we also had outside contractors in the plant to speed the work up. In September, 1945, when the strike occurred, I had a schedule established as to when the reconversion work in all probability would be completed. As to the reconversion work at the time the strike occurred I would say it had progressed in relation to the complete reconversion program or schedule as follows.

In the department devoted to space heaters and washing machines, we were in very good shape. The reconversion in the metal fabricating plant was practically complete. The reconversion in the porcelain plant was within one day of being complete when the strike took place. The assembly lines for space heater production and for washing machine production were practically complete. The assembly line for production of refrigerating units was, I would say, about 50 per cent complete; but we had a setup operating for the production of the cooling units for the refrigerators. The only place that we were not in very good shape was the fabricating assembly. Everything else was practically ready to go. Our production schedule was complied with up to September 8, and then, of course, the strike took place, and that was the end of it.

On September 1, 1945, the company had 830 employes and practically the same number on September 8. These 830 employes would not be able to meet our schedule of production which had been adopted. The 830 were merely a skeleton force and were practically all maintenance people engaged in certain kinds of reconversion work. According to the way the production schedule was built up, we would have required approximately 800 additional employes within the next two weeks following September 8, 1945. It was just about the end of the first week in September that we had moved out of the plant the materials previously used in our war work and got everything squared away so we were ready to go back to work on our regular production. We had bought the raw material in anticipation of meeting our production schedule and the purchased material had been scheduled for delivery during the period of the strike; but delivery was prevented by a picket line which was established around the plant.

At this point in Mr. Buchanan's testimony he was asked the following questions and gave the following answers:

‘Q. Mr. Buchanan, you testified that you are plant manager of the Norge Division, Borg-Warner Corporation, and have been for some time. You have further testified that you have worked directly on production schedules to meet certain production requirements during September, and subsequent months of 1945. You have further testified that it would be necessary to re-employ numerous additional employees to meet those production schedules. Can you tell us, Mr. Buchanan, what period of time it would have taken to return the men or employees that you have mentioned it would be necessary to return to work to the employ of the Norge Division? A. Based upon the amount of material that we had available, and the point at which our reconversion work was on September 8, I would say that we would have had all of these people back in the plant within a period not exceeding 3 weeks from that date.

‘Q. Now, you mean 3 weeks from that date you are referring to, that date as of the strike, September 8, 1945? A. That is correct, yes.

‘Q. Now, do I understand, Mr. Buchanan, that you have needed an estimated 800 more employees, but in your answer you referred to somewhat less than that. A. Oh no. I am referring to the people we would have needed. That is about 800 people.

‘Q. Included in this 800 are the claimants presently involved today? A. Yes.

‘Q. In other words, you need more than the present claimants? A. That is right.

‘Q. And it was your answer that within 3 weeks at the longest the full amount would have been returned? A. That is my estimate, yes.’

It fairly appears from the record that by reason of the variety of its products appellant's business was carried on in somewhat separated divisions. Among their products were refrigerators, washing machines, space heaters, etc. Obviously one or more of these divisions might have been in full operation prior to the time that the reconversion of the plant was fully completed. Even at the time of the trial, some reconversion work was still in progress. But without contradiction it appears from Mr. Buchanan's testimony that within three or four days after the strike was settled on November 12, one of their departments was set up and operating with a skeleton crew which was soon supplemented by rapidly filling in with additional employes. As to two of the departments in the plant, Mr. Buchanan testified: ‘We actually had production under way in these two departments, according to my record here, on the 23rd of November. Now let me explain there, that we also operate a service department, and because we were so far behind on our service picture, we tried to get the service department operating first, and then we turned to these two departments. We actually had people starting production there on November 23 (11 days after the strike ended), and according to my record here, we had actually fabricated enough parts so that by December 6 we had started our assembly line into operation, and by December 11 we had a full crew.’

Nowhere in the record is the testimony of Mr. Buchanan contradicted by any direst testimony, nor was it materially weakened by cross examination. The only phase of the record which might in any way tend to minimize the probative force of Mr. Buchanan's testimony is that notwithstanding the strike ended November 12, 1945, it was some months thereafter before appellant's plant was fully reconditioned for the production of the articles which they regularly manufactured. From this the inference is sought to be drawn that Mr. Buchanan's testimony that all of the plaintiffs in this case would have been back at work within three weeks after September 8, is not credible. But it appears from the record that the delay after the strike ended in reconditioning the plant and resuming production was due to the fact that, as the result of the strike and the picketing of the plant, delivery of necessary materials was not only delayed as they had been during the strike; but by the time the strike had ended and thereafter, the procuring of the required materials was much more difficult as the result of the market condition; and further, the skilled laborers who when the strike began were working on this reconditioning job stopped their work and went elsewhere, which resulted in a delay of several weeks in getting them back to this reconditioning job. One example of this type appearing in the record is that of a skilled laborer who at the time of the strike had only one day's work to complete repairs on a porcelain enamel furnace, but it actually took two and one-half weeks after the termination of the strike before this skilled man could be gotten back to complete the one day's work. It further appears that in the weeks and months following the termination of the strike, labor troubles in plants operated by those furnishing...