Ash v. Rutledge
| Decision Date | 12 March 1986 |
| Docket Number | No. 16740,16740 |
| Citation | 348 S.E.2d 442,176 W.Va. 727 |
| Court | West Virginia Supreme Court |
| Parties | John W. ASH, et al. v. Phyllis J. RUTLEDGE, Clerk of the Circuit Court of Kanawha County, West Virginia; the Board of Review of the West Virginia Department of Employment Security, J.F. McClanahan, as Chairman, C.C. Elmore, Jr. and Gregory E. Elliott, as Members, Nyle Hughes as Commissioner of the West Virginia Department of Employment Security, and Edenfield Electric, Inc. |
Syllabus by the Court
1. Syl., Belt v. Cole, 172 W.Va. 383, 305 S.E.2d 340 (1983).
2. "Findings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review." Syl. pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981).
Stanley M. Hostler, James F. Wallington, Hostler, Wood & Segal, Charleston, for appellants.
Ricklin Brown, Bowles, McDavid, Graf & Love, Charleston, James H. Stock, Jr., Weintraub, DeHart, Robinson, Coggin & Trotter, Memphis, Tenn., for employer.
Jack O. Friedman, Legal Div., Dept. of Employment Sec., Charleston, for Dept. of Employment Sec.
This action is before this Court upon the petition of John W. Ash, et al., who appeal from the final order of the Circuit Court of Kanawha County, West Virginia. Pursuant to that order, entered in March, 1985, the petitioners were denied unemployment compensation benefits. W.Va.Code, ch. 21A. This Court has before it the petition, all matters of record and the briefs and argument of counsel.
The petitioners are 57 members of Local 968 of the International Brotherhood of Electrical Workers ("I.B.E.W."), AFL-CIO. In 1982, pursuant to a collective bargaining agreement, they were employed by the respondent, Edenfield Electric, Inc., to perform electrical construction work at the Washington Works DuPont Plant in Parkersburg, West Virginia. In addition to the petitioners (electrical workers), other construction trades worked at the DuPont plant.
On June 1, 1982, members of Local 1144 of the Painters Union, AFL-CIO, established a picket line at the construction trades entrance ("construction gate") of the DuPont plant. The strike by the Painters Union followed the expiration of a collective bargaining agreement of the Painters Union for work at the plant.
At that time, the petitioners' collective bargaining agreement had not expired, and the petitioners had no labor dispute with either Edenfield or DuPont. The petitioners, however, did not cross the Painters Union picket line and did no further work at the DuPont plant until August 16, 1982, the date the picket line was terminated.
The petitioners seek unemployment compensation benefits for the period of their unemployment during the Painters Union strike.
In November, 1983, an evidentiary hearing was conducted by an Appeal Tribunal of the West Virginia Department of Employment Security. W.Va.Code, 21A-7-4(c) [1972]. During the hearing James Dotson, an I.B.E.W. official, testified that, "until four o'clock the day before the strike," Edenfield "and/or" DuPont considered opening a "reserve gate" through which the petitioners could enter the DuPont plant without walking through the Painters Union picket line. The reserve gate was never opened. Dotson indicated that, had the reserve gate been opened during the strike, the petitioners would have entered the plant and worked. Dotson testified:
Also testifying at the hearing was Jack Hayslett, an Edenfield superintendent. Hayslett stated that although the reserve gate was never opened, the petitioners were informed in writing that work would be available to them at the plant during the strike. 1
The Appeal Tribunal recognized that, pursuant to W.Va.Code, 21A-6-3(4) [1981], 2 a claimant for unemployment compensation benefits is disqualified from receiving benefits, if his or her unemployment "is due to a stoppage of work which exists because of a labor dispute...." However, finding that the labor dispute concerning the Painters Union "did not involve" the petitioners, the Appeal Tribunal concluded that the petitioners were not "(one) participating, financing, or directly interested in such dispute, and (two) did not belong to a grade or class of workers who were participating, financing, or directly interested in the labor dispute...." W.Va.Code, 21A-6-3(4) [1981]. Thus, the Appeal Tribunal ruled that the petitioners were entitled to unemployment compensation benefits.
The ruling of the Appeal Tribunal was affirmed by the Board of Review of the West Virginia Department of Employment Security. W.Va.Code, 21A-7-10 [1972].
Subsequently, however, the Circuit Court of Kanawha County reversed the rulings of the Board of Review and Appeal Tribunal and held that the petitioners were not entitled to unemployment compensation benefits. W.Va.Code, 21A-7-17 [1967]. The circuit court determined that, inasmuch as the petitioners' unemployment resulted from their failure to cross the Painters Union picket line, the petitioners were not entitled to benefits.
We noted in Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981), that 276 S.E.2d at 824. 3
As stated in W.Va.Code, 21A-6-1(3) [1981], an unemployed individual shall be eligible to receive benefits if he or she "is able to work and is available for full-time work for which he [or she] is fitted by prior training or experience and is doing that which a reasonably prudent person in his [or her] circumstances would do in seeking work." Moreover, W.Va.Code, 21A-6-1(4) [1981], provides that an individual must have been "totally or partially unemployed" to be eligible to receive unemployment compensation benefits.
As to disqualification, W.Va.Code, 21A-6-3(1) [1981], provides that an individual shall be disqualified for benefits for leaving his or her "most recent work voluntarily without good cause involving fault on the part of the employer ...." Another provision, W.Va.Code, 21A-6-3(4) [1981], states that an individual shall be disqualified for benefits:
For a week in which his [or her] 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 [or she] was last employed, unless the commissioner is satisfied that he [or she] was not (one) participating, financing, or directly interested in such dispute, and (two) did not belong to a grade or class of workers who were participating, financing, or directly interested in the labor dispute which resulted in the stoppage of work. No disqualification under this subdivision shall be imposed if the employees are required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality, or if employees are denied the right of collective bargaining under generally prevailing conditions, or if an employer shuts down his plant or operation or dismisses his employees in order to force wage reduction, changes in hours or working conditions.
....
The resolution of the eligibility issue in this aciton is aided by reference to this Court's decision in Belt v. Cole, 172 W.Va. 383, 305 S.E.2d 340 (1983). In Belt, the Circuit Court of Kanawha County held that, in view of Pickens v. Kinder, 155 W.Va. 121, 181 S.E.2d 469 (1971), striking employees do not meet the eligibility requirements of this State's unemployment compensation law. We held, however, that such a holding renders "meaningless or useless" the statutory labor dispute disqualification of W.Va.Code, 21A-6-3(4).
Concluding that the employees, in Belt, were eligible to receive unemployment compensation benefits, this Court remanded the action to the circuit court to determine whether the employees were "disqualified by W.Va.Code, 21A-6-3(4), or [fell] within the specifically enumerated exceptions to disqualification in that section." 172 W.Va. 386, 305 S.E.2d at 343. (emphasis added). The syllabus point of Belt states:
Unemployment compensation claimants meet statutory eligibility requirements of 'total or partial unemployment' and 'availability for work' even if they are not working because of a labor dispute. W.Va.Code, 21A-6-3(4) must be applied to their cases to determine whether they are disqualified or fall within an exception to disqualification. Syllabus Points 3, 4, and 5 of Pickens v. Kinder, 155 W.Va. 121, 181 S.E.2d 469 (1971), are overruled. 4
Furthermore, in Hill v. Board of Review, 166 W.Va. 648, 276 S.E.2d 805 (1981), where a mine was closed for repair during a period in which "roving pickets" were occasionally present, this Court, in syllabus point 2, stated:
The existence of a possibility or probability that employees would not have reported to work had...
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