Bd. Of Review Of West Va. Dep't v. Clerk

• Decision Date: 29 February 1944
• Docket Number: No. 9526.,9526.
• Citation: 29 S.E.2d 618
• Parties: BOARD OF REVIEW OF WEST VIRGINIA DEPARTMENT OF UNEMPLOYMENT COMPENSATION et al. v. HIX, Circuit Court Clerk, et al.
• Court: West Virginia Supreme Court

29 S.E.2d 618

BOARD OF REVIEW OF WEST VIRGINIA DEPARTMENTOF UNEMPLOYMENT COMPENSATION et al.

v.HIX, Circuit Court Clerk, et al.

No. 9526.

Supreme Court of Appeals of West Virginia.

Feb. 29, 1944.

Dissenting Opinion April 5, 1944.

Syllabus by the Court.

A strike called by a labor union, of which a part only of the workmen at the plant affected are members, that involves no disagreement with the employer but is caused by a lack of agreement among the employees, not shown to have been influenced by the employer, concerning labor union affiliations, is not a labor dispute within the meaning of that term as used in Code, 21A-6-4(4).

LOVINS, J., dissenting.

Appeal from Circuit Court, Kanawha County.

Proceeding by the Board of Review of the West Virginia Department of Unemployment Compensation and others against M. H. Hix, Clerk of the Circuit Court of Kanawha County, and others, to review an order awarding unemployment compensation on appeal from a decision of the Board.

Affirmed.

Leo Loeb, of Charleston, for petitioners.

Ritchie, Hill & Thomas and John H. Thomas, all of Charleston, for respondents.

KENNA, Judge.

Ninety-four of the employees of Wallace Corporation at its plant in Richwood, where it is engaged in the manufacture of clothespins and wooden dishes, were refused unemployment compensation by the Commissioner and by a trial examiner of the Unemployment Compensation Department. That finding was affirmed by the Board of Review. Upon appeal to the Circuit Court of Kanawha County, the ruling of the Board of Review was set aside and an order entered awarding compensation. Upon the application of the Board of Review this appeal was granted.

The circumstances out of which the controversy arose so far as they affect the legal questions arising on this appeal are not controverted and may be stated as follows:

In September, 1941, a strike was ordered by certain employees of Wallace Corporation in its Richwood plant who were members of the Congress of Industrial Organizations in order to compel the recognition of that organization as the bargaining agency for all of the company's workmen. All of the persons employed at the Rich-wood plant did not then belong to the CIO union and the strike was not based upon a disagreement between the employer and the men called out concerning working conditions, wages or hours. The plant was picketed and from the testimony it appears that the workmen who were not members of the CIO and who wished to continue work were prevented from entering the plant by threatened violence. The exact time does not appear, but near the middle of October a number of the workmen who were not members of the CIO union and who were not striking, procured a charter from the Secretary of State authorizing the organization by them of the Richwood Clothespin and Dishwashers' Union. That union did not call a strike. The strike lasted until January 13, 1942, when operations at the plant were resumed, the strike having resulted in a complete suspension of work.

As we understand the record, the findings of the trial examiner and of the Board of Review were to the effect that within the meaning of Chapter 21A of the Code a strike which caused a suspension of work which in turn created the unemployment upon which these claims are based, was a labor dispute within the terms of the chapter to which reference is had; that claimants had not participated directly or indirectly in causing the strike to occur or in supporting it during its continuance, but that, the unemployment having been the direct result of a labor dispute the claimants had failed as is required by Code, 21A-6-4 (4), to show that they did not belong to the grade or class of workers who were participating, financing, or directly interested in the labor dispute which resulted in the stoppage of work.

The employer did not appear at the hearing and took no position concerning the decision of the controverted question. It is admitted that the strike was not brought about by any difference between the Wallace Corporation and its employees.

It is quite apparent that the first question to be determined is whether the strike at the plant of the Wallace Corporation in Richwood was a labor dispute. If we are of the opinion that the trial examiner and Board of Review were correct in their conclusion that it was, we then reach the question of whether it was the duty of the applicants for unemployment compensation to show, as a part of their case, that they did not belong to the grade or class of workers engaged in striking, or whether that is matter which should be set up and shown by those resisting the award of unemployment compensation. In other words, was that question an element of the cases of the claimants to be shown by them, or was it matter of defense to be shown either by the employer or by the Unemployment Compensation Department.

We think there is no question but that the purpose of our unemployment compensation statute is to partially insure those satisfactorily employed who wish to continue earning their living, against unemployment arising from any cause except those expressly enumerated in Code, 21A-6-4, and to remove from the minds of those willing, able and anxious to work the constant dread, through no fault of their own, of being deprived of employment. It is quite plain that it was not its purpose to award compensation to those who either individually, or as a member of a class, willfully contributed to the cause of their own unemployment. We believe it is equally clear that a fair reading of the act shows beyond peradventure that its purpose was to include, as far as practicable, all those who were involuntarily and temporarily out of work.

The first class, which Code, 21A-6-4, excludes from receiving benefits, allotted by the week, are those who left work voluntarily without good cause involving fault on the part of the employer. Following that provision, after two other exclusions with which we are not here concerned, those next disqualified are those whose unemployment is due to a stoppage of work existing because of a labor dispute at the factory where they were employed. We believe that it is comparatively clear from a reading of the whole chapter that the legislative purpose was not to include in the term "labor disputes", controversies which might arise among the men themselves or what might be termed internal disagreements. To say that the statute contemplates treating interwoven and intra labor union controversies, which frequently do cause a stoppage of work, as a labor dispute that would disqualify all employees working in the same grade or class as the participants, strikes us as not within the spirit or the wording of the act. Of course the first subsection disqualifies participants for the week in which they...