Achenbach v. Review Bd. of Indiana Employment Sec. Division, 30206

• Decision Date: 06 February 1962
• Docket Number: No. 30206,30206
• Citation: 242 Ind. 655,179 N.E.2d 873
• Parties: Werner H. ACHENBACH et al., Appellants, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION; William S. McMaster, William G. Johnson, and John M. Harrigan, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and International Harvester Company, Bueter Road, Fort Wayne, Indiana, Appellees.
• Court: Indiana Supreme Court

Page 873

179 N.E.2d 873

242 Ind. 655

Werner H. ACHENBACH et al., Appellants, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION William S. McMaster, William G. Johnson, and John M Harrigan, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and International Harvester Company, Bueter Road, Fort Wayne Indiana, Appellees.

No. 30206.

Supreme Court of Indiana.

Feb. 6, 1962.

Chester E. Bowman, Jerrald A. Crowell, Bowman & Crowell, Fort Wayne, for appellants.

Edwin K. Steers, Atty. Gen., Frank E. Spencer, Chief Counsel, Keith Campbell, Deputy Atty. Gen., for appellee Review Board of Indiana Employment Security Division.

Seymour W. Croft, Chicago, Ill., Ward E. Dildine, David B. Keller, Fort Wayne, Campbell, Livingston, Dildine & Haynie, Fort Wayne, of counsel, for appellee International Harvester Company.

BOBBITT, Judge.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See: Achenbach v. Review Board of Ind. Emp. Sec. Div. (Ind.App., 1961), 172 N.E.2d 214, for opinion of the Appellate Court.

The proceeding here was instituted before the Review Board of Indiana Employment Security Division to determine the eligibility of claimant-appellant, Achenbach, and others, for benefits under the Indiana Employment Security Act. ¹

International Harvester Company operates two plants in the City of Fort Wayne, Indiana, one known as the Fort Wayne Works, and the other as the Motor Truck Engineer Division. They are located on separate premises across the street from each other.

On November 13, 1958, the UAW-CIO, Local 57, representing the production workers, and the UAW-CIO, Local 305, represent the office and clerical workers, called a strike at both plants.

Claimants-appellants, and others represented by them, who were members of Local 80 of International Die Sinkers, and Local 1608 of the International Brotherhood of Electrical Workers who worked at the Fort Wayne Works, and those who were members of Local 137 of American Federation of Technical Engineers and worked at the Motor Truck Engineer Division, were not on strike. Members of the first two of these non-striking unions did not cross the picket lines although work was at all times available to each and all of them.

Within the required time these workers belonging to the two non-striking unions whose members refused to cross the picket lines, filed their applications for benefits with the Indiana Employment Security Division stating that they were unemployed because of a labor dispute.

The claims of several applicants for benefits were heard before a referee on March 12, 1959. The referee found that claimants who were members of Local 80 of the International Die Sinkers Conference, Local 137 of the American Federation of Technical Engineers AFL-CIO, and Local 1608 of the International Brotherhood of Electrical Workers, AFL-CIO, were entitled to benefit rights during all of the calendar weeks covered by the duration of the strike. ²

Appellee, International Harvester Company, appealed this ruling to the Review Board of the Indiana Employment Security Division which, after notice and hearing, issued its decision on September 2, 1959. The pertinent parts of such decision are as follows:

'FINDINGS AND CONCLUSIONS: The Board finds that a stoppage of work existed because of a labor dispute at the employer's establishment during the period from November 13, 1958, to January 19, 1959, and that the unemployment of the claimants during such period was because of the labor dispute.

'The Board further finds that the claimants herein, being members of certain unions, refused to cross or attempt to cross picket lines formed by striking employees who were members of another union at each of the employer's two plants in the city of Fort Wayne, Indiana.

'It is further found that said claimants refused to attempt to return to work during the period from November 13, 1958, to January 19, 1959, and that there was work available for each of said claimants during said period of time.

'It is further found that the claimants never requested any protection for the purpose of proceeding through the picket line although the city police were present for the purpose of directing traffic, nor did they seek the aid of the courts for injunctive relief from interference, if any existed, with their right to return to work had they so desired.

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'It is further concluded that the claimants were participating in the labor dispute which caused their unemployment by reason of their election to honor the picket line of striking employees and their refusal to make a reasonable attempt to cross said picket line.

'It is further concluded that the evidence is insufficient to bear out the claimants' contention that they would receive bodily harm if an attempt was made to cross the picket line.

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'Therefore, it is finally concluded that the claimants, and each of them involved herein, were ineligible for unemployment benefit rights during the weeks in which they were unemployed in the period of November 13, 1958, to January 19, 1959.'

From the decision of the Review Board an appeal was prosecuted to the Appellate Court.

The sole error assigned is that the decision of the Review Board of the Indiana Employment Security Division is contrary to law.

The decision of the Review Board as to all questions of fact is conclusive ³ and binding upon the court, and the court will not disturb the decision of the Board unless reasonable men would be bound to reach a different conclusion on the evidence in the record. Adams et al. v. Rev. Bd. Ind. Emp. Sec. Div. et al., (1957), 237 Ind. 63, 69, 143 N.E.2d 564; Board of Medical Registration v. Armington (1961), Ind., 178 N.E.2d 741; National Furniture Mfg. Co. v. Review Bd. of Ind. E. S. D. (1960), 131 Ind.App 260, 170 N.E.2d 381, 384.

The evidence most favorable to the decision of the Review Board may be summarized as follows:

Two unions, neither of which appellants, nor any persons represented by them, were members, were on strike at both Fort Wayne plants of appellee, International Harvester Company, from November 13, 1958, to January 19, 1959. The strike continued at the Fort Wayne Works from November 13, 1958, to January 19, 1959, and at the Motor Truck Engineer Division from November 13, 1958, to November 25, 1958. The strike resulted from a dispute involving wages and working conditions of members of the striking unions.

'Management employees' and 'excluded employees' were employed at both plants and continued to work during the period of the strike, crossing the picket lines each day to go to and from their work. Most of these employees carried nothing to identify them as belonging to the 'management' or 'excluded' group of employees.

There was a common entrance for all employees at each plant.

When appellants, Achenbach, Sills, and other members of International Die Sinkers, Local 80, and members of the International Brotherhood of Electrical Workers, Local 1608, reported to work on November 13, 1958, the first day of the strike, there were pickets at the entrance of both plants.

There is conflict in the evidence concerning the number of pickets on duty at any one time. The Industrial Relations Manager of the Motor Truck Engineer Division testified that there were 15 to 20 pickets at the entrance of that plant. Witnesses for the American Federation of Technical Engineers, Local 137, AFL-CIO, testified that 'at times' there were 150 to 200 pickets at the entrance of the engineering plant, for 'two or three days' and this was 'probably five times' the number at both entrances to the other plant. Two other witnesses for the claimants-appellants testified that the number of pickets decreased after the first day of the strike, and at one time there were only two pickets.

The picketing was, at all times, peaceful. There is no evidence of any violence or threats of violence at either plant during the strike. No pickets were observed carrying weapons of any kind. There were women on the picket line, and at times there were more women than men at the Fort Wayne Works.

A Mr. Sills, who was president of International Die Sinkers, Local 80, and a witness for claimants-appellants, testified that when he and his men approached the picket line of the first shift on the first day of the strike he asked the picket captain if they could cross the line, and the captain replied, 'No * * * he wasn't allowing nobody to cross.' There is no evidence that this witness or any of the claimants on any shift insisted upon his right to enter the plant, ⁴ nor is there any evidence that anyone made any effort to secure the aid of police, deputy sheriffs or plant guards, who were present, in enforcing their right to enter the plant.

The undisputed evidence shows that no reply was made to the picket captain when he said he wasn't allowing anybody through the line. The witness, Mr. Sills, testified, however, that he then turned and walked back across the street where he 'waited a while to see if anybody crossed.' He saw no one cross and 'after a while, the fellows begin to go their ways * * * and it all thinned out', then he went home.

Mr. Sills returned three times the first day when the other shifts were to report and informed the men on each shift that a 'strike was on and they wouldn't let us cross the picket line in the morning' and told them to 'approach the picket line and see if they could get through.'

At each shift, on the first day of the strike, the men were told that they could not cross the picket line and on each occasion they left without making any further effort to cross. The president of the union, Mr. Sills, visited the plant 'about 7 times' after the first day and asked someone in the picket line if he could go to work and was refused. ⁵ Sills was never threatened with...