Achenbach v. Review Bd. of Indiana Employment Security Division

• Court: Indiana Appellate Court
• Writing for the Court: GONAS; KELLEY; BIERLY, J., concurs with concurring opinion by KELLEY; KELLEY
• Citation: Achenbach v. Review Bd. of Indiana Employment Security Division, 172 N.E.2d 214 (Ind. App. 1961)
• Decision Date: 21 February 1961
• Docket Number: No. 2,No. 19403,19403,2
• 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. *

Page 214

172 N.E.2d 214

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. 19403.

Appellate Court of Indiana, Division No. 2.

Feb. 21, 1961.

Bowman & Crowell, Fort Wayne, for appellants.

Edwin K. Steers, Atty. Gen., Keith Campbell, Deputy Atty. Gen., Seymour W. Croft, Chicago, Ill., Ward E. Dildine, David B. Keller, Ft. Wayne, Campbell, Livingston, Dildine & Haynie, Ft. Wayne, of counsel, for appellees.

GONAS, Judge.

Appellants bring for a judicial review, a decision of the Review Board of the Indiana Employment Security Division, that seventy-one (71) appellants here were not entitled to benefit rights.

The following facts were stated by the Review Board;

'The employer herein operates two plants in the city of Fort Wayne, Indiana; one known as the Fort Wayne Works, and the other known as the Motor Truck Engineer Division. There is no dispute that a work stoppage existed as a result of a labor dispute at the two establishments of the employer. The period of stoppage at the Motor Truck Engineer Division was from November 13, 1958, to January 19, 1959, at the said Fort Wayne Works, and the period of stoppage at the Motor Truck Engineer Division was from November 13, 1958, to November 25, 1958. The employer's contention herein is that the claimants who are members of the Society of Engineers, Local 80 of the International Die Sinkers, Local 137, of the American Federation of Technical Engineers, or Local 1608 of the IBEW are ineligible to benefit rights pursuant to 1504 of the act. There is no dispute that there was work available for each of the claimants involved during the period in question. Also, there is no dispute that said claimants were not the 'striking' employees but instead they refused to attempt to cross the picket lines established by the strikers for the reason that the claimants professed a fear of bodily harm.'

The evidence reveals that as a result of the picketing outside the entrance to the employer's premises, it was deemed necessary to have city policemen aid in the directing of vehicular traffic. The pickets successfully barred the claimants herein from entering the gates to the employer's premises.

The following findings and conclusions were made by the Board;

'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 the right to return to work had they so desired.'

'* * * 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.'

The claimants herein were found by two members of the Review Board to not be entitled to benefit rights with one member dissenting. The following is the dissenting opinion of said member.

'There is no question but that there was mass picketing at the gates of the employer's premises and I do not believe that it is incumbent upon the employee to subject himself to possible bodily harm in order to prove that he is not participating in a labor dispute by failure to cross a mass picket line.'

'It is also my opinion that it is the duty of the employer to furnish his employees with a safe place to work and a safe means of egress and ingress to his place of employment. Consequently, there is no duty on the employee to seek injunctive relief or the aid of the police to reach his place of work. This duty rested entirely upon the employer.'

'I am therefore, of the opinion that the claimants were not participants in the labor dispute which caused a stoppage of work and should be paid benefits for the weeks properly claimed during the period November 13, 1958, to January 19, 1959.'

Appellants contend that the evidence most favorable to the decision of the Review Board shows that appellants '* * * Did not refuse to cross or attempt to cross picket lines, that they did not refuse to attempt to return to work; that they did not elect to honor the picket line, that they did make a reasonable attempt to cross it, and that consequently they were not participating in the strike. * * *'

It appears from the evidence that some of the employees of the International Harvester Company were not represented by a union and that others were represented by a union.

Members filed their claims for unemployment benefits. Following an adverse decision, the appellants brought their claim here for judicial review.

Claimants rely heavily on the following statutes for relief.

Burns 1951 Replacement, Sec. 52-1525;

'As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is declared hereby to be a serious menace to the health, morale and welfare of the people of this state and to the maintenance of public order within this state. Protection against this great hazard of our economic life can be provided in some measure by the required and systematic accumulation of funds during periods of employment to provide benefits to the unemployed during periods of unemployment and by encouragement of desirable stable employment. The enactment of this measure to provide for payment of benefits to persons unemployed through no fault of their own, to encourage stabilization in employment * * * service is, therefore, essential to public welfare; and the same is declared to be a proper exercise of the police powers of the state.' Burns Ind.Stat.Anno., § 52-1539c (Supp. 1960) states;

'An individual shall be ineligible for waiting period or benefit rights: for any week with respect to which an employee of the division, designated by the director and hereinafter referred to as the deputy, finds that his total or partial or part-total 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 was last employed; Provided, That this section (52-1539c) shall not apply if it is shown to the satisfaction of the deputy that; he is not participating in or financing or directly interested in...