Albuquerque-Phoenix Express, Inc. v. Employment Sec. Commission

• Decision Date: 24 December 1975
• Docket Number: No. 10247,ALBUQUERQUE-PHOENIX,10247
• Citation: 88 N.M. 596,544 P.2d 1161,1975 NMSC 69
• Parties: EXPRESS, INC., Petitioner-Appellant, v. EMPLOYMENT SECURITY COMMISSION of New Mexico, Respondent-Appellee, and Robert R, Burgess et al., Claimants-Appellees.
• Court: New Mexico Supreme Court

Page 1161

544 P.2d 1161

88 N.M. 596

ALBUQUERQUE-PHOENIX EXPRESS, INC., Petitioner-Appellant, v. EMPLOYMENT SECURITY COMMISSION of New Mexico, Respondent-Appellee and Robert R, Burgess et al., Claimants-Appellees.

No. 10247.

Supreme Court of New Mexico.

Dec. 24, 1975.

Rehearing Denied Jan. 15, 1976.

Pickering & Mahon, Albuquerque, for appellant

R. Baumgartner, Albuquerque, for Employment Security Commission.

Kool, Kool, Bloomfield & Eaves, Albuquerque, for claimants.

OPINION

McMANUS, Chief Justice.

This matter was brought in the District Court of Bernalillo County for review upon certiorari of a decision of the Employment Security Commission (Commission) that certain claimants for unemployment compensation benefits, employees of Albuquerque-Phoenix Express, inc., petitioner-appellant (Company), who were unemployed as a result of a labor dispute were eligible to receive unemployment benefits. This matter was presented to the court upon briefs and oral argument. From a judgment of the district court dismissing the Company's appeal and affirming the judgment of the Commission, the Company appeals to this court.

After receiving the decision of the court adverse to it, the Company, by this appeal requests review of the following points:

1. Claimants were not available for work nor were they actively seeking work as required by § 59--9--4(A)(3), N.M.S.A. 1953 Comp.

2. Claimants were disqualified under § 59--9--5(a), N.M.S.A. 1953 Comp., as they left work voluntarily without good cause.

3. The employees should have been disqualified under § 59--9--5(d), N.M.S.A. 1953 Comp., as there was a 'stoppage of work' at the Company's premises.

4. Even if 'stoppage of work' is defined as a substantial curtailment of the employer's business, such a curtailment did occur.

The first issue raised concerns § 59--9--4(A)(3), supra, which provides, in part, as follows:

'A. An unemployed individual shall be eligible to receive benefits with respect to any week only if he:

'(3) is able to work and is available for work and is activity seeking work; * * *' (Emphasis added.)

The Appeals Tribunal for the Commission and the Commission itself, which adopted the ruling of the Appeals Tribunal, determined that twelve of the seventeen claimants were available for and actively seeking work. On this issue, the finding of the Appeals Tribunal, being representative of each of the twelve claimants, read in relevant part, as follows:

'The claimant was required to register for work with the New Mexico State Employment Service as a prerequisite to filing for unemployment benefits. The claimant also sought work through the union ((Teamsters) Local 492), which maintains an out-of-work list and a hiring hall. During several weeks while filing continued claims, he was successful in obtaining temporary work through the union. During about seven of these weeks, he earned more than his weekly benefit amount ($56.00). The evidence shows that the claimant was available for full-time work had such been offered to him.'

The Commission and the court below adopted this finding and we conclude that there was substantial evidence to support such a finding.

The employer seeks to have us interpret the availability and active search for work provisions of § 59--9--4(A)(3), supra, as establishing an absolute standard of availability for permanent new work with no limitations or restrictions of any kind, regardless of the circumstances prevailing in particular cases. Applying this standard to persons whose unemployment results from a labor dispute and holding them unavailable because they will not immediately return to their jobs with the employer with whom they are disputing, or will not sever their employment relationship with that employer and seek permanent new work, would in all cases make such persons ineligible and render the labor dispute disqualification provisions of § 59--9--5(d), N.M.S.A.1953 Comp., totally superfluous. (That section will be discussed in more detail in our consideration of 'stoppage of work.')

On the basis of individual interviews with each claimant by Commission personnel, written documents and other reports in each claimant's file, and the record before the Commission's Appeals Tribunal, where all parties were represented, the Commission found that the claimants were available for and actively seeking work as required by § 59--9--4(A)(3), supra. The Commission further found that a number of claimants had obtained temporary intervening work, and that picket line duty was not mandatory and did not interfere with the claimants' search for or acceptance of work.

It seems obvious that the claimants herein were already employed by the Company. They expected only a temporary unemployment period and, therefore, could be available only for temporary intervening work. It would not make much sense for the Commission to demand that they, in fact, quit their job and really join the ranks of the unemployed, or that they abandon their legal rights and economic interest in the labor dispute and return to their jobs with the employer with whom they were disputing on the premise that their dispute was without merit.

In fact, § 59--9--5(c)(2), N.M.S.A.1953 Comp., expressly provides:

'Notwithstanding any other provisions of this act (59--9--1 to 59--9--29), no work shall be deemed suitable and benefits shall not be denied under this act to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; * * *.'

Another point for review concerns whether or not claimants left work voluntarily without good cause. The Commission held inapplicable, in the case of labor disputes such as we find here, the voluntary leaving provision of § 59--9--5(a), N.M.S.A.1953 Comp., reading:

'An individual shall be disqualified for benefits--

'(a) For the week in which he has left work voluntarily without good cause, if so found by the commission, and for not less than one (1) nor more than thirteen (13) consecutive weeks of unemployment which immediately follow such week (in addition to the waiting period) as determined by the commission according to circumstances in each case, and such individual's total benefit amount shall be reduced in a sum equal to the number of weeks of disqualification multiplied by his weekly benefit amount.'

In Inter-Island Resorts, Ltd. v. Akahane, 46 Haw. 140, 156--58, 377 P.2d 715, 724--25 (1962), the Supreme Court of Hawaii analyzed a provision in the Hawaii Employment Security Law quite similar to our provision, § 59--9--5(a), supra, in the following way:

'This argument (that claimants unemployed as the result of a labor dispute should be disqualified under the voluntary leaving provisions of the unemployment compensation law) is in direct conflict with the generally accepted interpretation of the voluntary leaving and the labor dispute disqualification provisions of the various state laws. The consensus supports the conclusion that the two disqualification provisions are mutually exclusive and that an individual whose unemployment is due to a 'stoppage of work' which exists because of a 'labor dispute' cannot be said to have 'left his work voluntarily' within the meaning of the voluntary separation provision. T. R. Miller Mill Co. v. Johns, 261 Ala. 615, 75 So.2d 675; Intertown Corp. v. Appeal Board of Mich. Unemployment Comp. Comm., supra, 328 Mich. 363, 43 N.W.2d 888; Little Rock Furniture Mfg. Co. v. Commissioner of Labor, 227 Ark. 288, 298 S.W.2d 56; Marathon Electric Mfg. Corp. v. Industrial Comm., 269 Wis. 394, 69 N.W.2d 573, 70 N.W.2d 576; Lesser, Labor Dispute and Unemployment Compensation, 55 Yale Law Journal 167.

'It is one of the fundamental tenets of the unemployment compensation law that the administering agency remain neutral in the labor dispute and refrain from passing on the merits of the dispute. Courts almost unanimously hold that the merits of a labor dispute are immaterial in determining the existence of the dispute, the rationale being that the unemployment compensation fund should not be used for the purpose of financing a labor dispute any more than it should be withheld for the purpose of enabling an employer to break a strike. Sakrison v. Pierce, supra, 66 Ariz. 162, 185 P.2d 528; In re Steelman, supra, 219 N.C. 306, 13 S.E.2d 544; Amory Worsted Mills, Inc. v. Riley, 96 N.H. 162, 71 A.2d 788; W. R. Grace & Co. v. California Employment Comm., 24 Cal.2d 720, 151 P.2d 215; Byerly v. Unemployment Comp. Board of Review, 171 Pa.Super. 303, 90 A.2d 322; Lawrence Baking Co. v. Michigan Unemployment Comp. Comm., supra, 308 Mich. 198, 13 N.W.2d 260; T. R. Miller Mill Co. v. Johns, supra, 261 Ala. 615, 75 So.2d 675.

'Moreover, the terms 'leaving work' or 'left his work' as used in unemployment compensation laws refer only to a severance of the employment relation and do not include a temporary interruption in the performance of services. Kempfer, Disqualifications for Voluntary Leaving and Misconduct, 55 Yale Law Journal 147, 154. Absence from the job is not a leaving of work where the worker intends merely a temporary interruption in the employment and not a severance of the employment relation. Such is the case of strikers who have temporarily interrupted their employment because of a labor dispute. Under the prevailing view, they have not been deemed to have terminated the employment relationship and the voluntary leaving disqualification has no application to them. T. R. Miller Mill Co. v. Johns, supra, 261 Ala. 615, 75 So.2d 675; Mark Hopkins, Inc. v. California Employment Comm., 24 Cal.2d 744, 151 P.2d 229, 154 A.L.R. 1081; Knight-Morley Corp. v. Michigan Employment Security Comm., 352 Mich. 331, 89 N.W.2d 541; Marathon Electric Mfg. Corp. v. Industrial Comm., supra, 269 Wis. 394, 69 S.W.2d 573, 70 N.W.2d 576.'

We fully adopt this reasoning. 269 Wis. 394, 69...