Autwell v. State Dept. of Indus. Relations, 7 Div. 27

• Citation: 47 Ala.App. 8,249 So.2d 625
• Decision Date: 16 June 1971
• Docket Number: 7 Div. 27
• Parties: James H. AUTWELL and Winford C. Stansell v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS, Alabama Pipe Company, Coosa Foundry, Employer. , 28.
• Court: Alabama Court of Civil Appeals

Page 625

249 So.2d 625

47 Ala.App. 8

James H. AUTWELL and Winford C. Stansell v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS, Alabama Pipe Company, Coosa Foundry, Employer.

7 Div. 27, 28.

Court of Civil Appeals of Alabama.

June 16, 1971.

Hawkins, Rhea, Keener, Battle & Cusimano, Gadsden, for appellants.

J. Eugene Foster and Kenneth E. Vines, Montgomery, for Dept. of Industrial Relations.

Walter Merrill, Anniston, for Alabama Pipe Co. and Coosa Foundry.

BRADLEY, Judge.

The cases before this court resulted from judgments being rendered against the appellants, denying them unemployment compensation.

The cases were consolidated and tried together by the Circuit Court, sitting without a jury.

The appellants had claimed unemployment compensation for two weeks when they allege they were unemployed.

The record shows that appellants were employees of Alabama Pipe Company, Coosa Foundry, which is located in Gadsden, Alabama. They worked the last scheduled work day in 1966, which was December 22, preceding the Christmas holiday. The company thereafter voluntarily shut the foundry down for the last week in December 1966, which included Christmas Day, and the first week in January 1967, which included New Year's Day. Operations at the foundry resumed on Monday, January 9, 1967. This was the first scheduled work day after the shutdown.

The contract between the company and the union of which the appellants were members provided for certain paid holidays during the year, and included was Christmas Day and New Year's Day. It was provided in the contract that each employee should be paid for eight hours at his average straight time hourly rate for the above mentioned holidays, without any work being performed on said holidays. It was further provided in the contract that each employee was to work the last scheduled work day preceding the holiday and the first scheduled work day after the holiday, in order to be eligible for the holiday pay.

The appellants received holiday pay from the company for Christmas and New Year's Day.

Claims were filed by the appellants seeking unemployment compensation benefits for the last week in December 1966 and the first week in January 1967. These claims were denied by the Department of Industrial Relations for alleged failure to comply with Title 26, Section 206, Code of Alabama 1940, as Recompiled 1958.

The decision to deny unemployment compensation benefits to appellants was reviewed by the Board of Appeals of the Department and there affirmed. An appeal was then taken to the Circuit Court for a trial be novo, where it was heard by the court without a jury. There was a judgment in favor of appellees, and this appeal resulted from that judgment.

There are three assignments of error which raise two issues: (1) whether or not the term 'holiday pay' is included within the term 'wages' as defined by Title 26, Section 191, Code of Alabama 1940, as Recompiled 1958; and (2) whether or not holiday pay is considered paid the week following the holiday or is considered paid 'with respect to' the week in which the holiday occurred.

The issues delineated above present matters of first impression in this jurisdiction. There are no Alabama appellate court decisions construing the issues now before us.

Other jurisdictions have been confronted with these issues, and it appears that the majority have construed holiday pay to be wages and consider holiday pay to have been paid with respect to the week in which the holiday occurred. See Weyerhaeuser Timber Company v. State Unemployment Compensation Commission, 217 Or. 378, 342 P.2d 114; In re Weyerhaeuser Timber Co., 53 Wash.2d 235, 332 P.2d 947; Moore v. State of Delaware Unemployment Compensation Commission, 3 Storey 209, 167 A.2d 76; General Motors Corp. v. Michigan Unemployment Compensation Commission, 331 Mich. 303, 49 N.W.2d 305; Erickson v. General Motors Corp., etc., 177 Kan. 90, 276 P.2d 376; Hill v. Review Board of Indiana Employment Security Division, 124 Ind.App. 83, 112 N.E.2d 218; and Draus v. Board of Review, 13 N.J.Super. 231, 80 A.2d 316.

Our statute--Title 26, Section 191, Code of Alabama 1940, as Recompiled 1958--defines 'wages' as follows:

'* * * 'wages' as used in this chapter shall mean every form of remuneration paid or received for personal services including the cash value of any remuneration paid in any medium other than cash; * * * provided, however, the term 'wages' shall not include: * * *.' (Here follow eight items that are not to be considered as 'wages', and holiday pay does not appear in these eight exclusions.)

Title 26, Section 206, supra, also provides that an individual is totally unemployed where: (1) he performs no service, and (2) where no wages are payable to him with respect to that week.

The union agreement in the case at bar explicitly provided that an employee was to receive his regular wages for the named holidays even though he was not to perform any services, so long as said employee met the other conditions required of one receiving holiday pay, such as having been employed for thirty days prior to the holiday, having worked the last scheduled work day prior to the holiday, and having worked the first scheduled work day after the holiday.

In the case at bar the appellants met the eligibility conditions proscribed by the contract and were paid for the two holidays in question.

In attempting to decide whether or not 'holiday pay' as authorized by the collective bargaining agreement heretofore mentioned is or is not included within the meaning of the term 'wages' as defined by Section 191, supra, it will be necessary for us to examine the decisions from other jurisdictions.

The case that appears to be practically on all fours with the case at bar is Weyerhaeuser Timber Company v. State Unemployment Compensation Commission, supra.

In that case we have an almost identical fact situation with ours, in that there was in force, a union contract providing for holiday pay; the employees of the company being paid for Christmas Day and New Year's Day; there being a shutdown of the plant for three weeks, beginning on December 21, 1956 and ending on January 14, 1957; and claims filed for unemployment compensation for the period the plant was closed, but the claims being denied.

The principal contention of the claimants in the cited case--the same contention being made in the case at bar--was that the trial court erred in its interpretation of the Oregon statute to the effect that holiday pay for Christmas Day and New Year's Day was wages or remuneration for services performed during the weeks in question.

They argued that since no productive work was performed during the weeks in question, the holiday pay received could not be considered as payment for services. They further argued that if it be considered that claimants did perform services for the Company during the shutdown, the pay received was remuneration relating to productive services actually performed on other days.

The Oregon Supreme Court said the answers to these two questions are found in the union contract and the pertinent statutes on unemployment compensation.

As we mentioned before, the union agreement in the cited case and the one in the case at bar are almost identical; we would also comment that the applicable Oregon statutes are very similar to the Alabama Statutes governing the issues here presented.

For example, their statute defines 'wages' as 'all renumeration for employment, including the cash value, * * * of all remuneration paid in any medium other than cash.'

Their statutes also provide that, 'an individual is deemed 'unemployed' in any week during which he performs no services and with respect to which no wages are payable to him, * * *' The Oregon Supreme Court then said:

'The statute does not restrict the employe to productive services and it has been said the word 'services' is not to be limited to 'the expenditure of physical or mental effort.' They are no less earned services when the employer may command the time of an employe. Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718.

'The contract as entered into on behalf of the claimants clearly contemplates that, although no productive services are to be performed on the particular holidays, nevertheless, they are to be considered as employes and paid as though rendering services, for if required to render physical or mental labor on these days, the contract provides they are to receive a larger rate of pay.

'* * * There can be no question but that their physical...