Bennett v. Hix, s. 10536

• Decision Date: 15 December 1953
• Docket Number: Nos. 10536,10552,10550,s. 10536
• Citation: 79 S.E.2d 114,139 W.Va. 75
• Court: West Virginia Supreme Court
• Parties: BENNETT et al. v. HIX et al. CLINE et al. v. HIX et al. HARMER et al. v. HIX et al.

Page 114

79 S.E.2d 114

139 W.Va. 75

BENNETT et al. v. HIX et al.

CLINE et al. v. HIX et al.

HARMER et al. v. HIX et al.

Nos. 10536, 10550, 10552.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1953.

Decided Dec. 15, 1953.

Syllabus by the Court.

1. An agreement between an employer and its employees, giving to the employer the option to grant a mass or staggered vacation at a time to be fixed by such employer is superseded, in that particular, by Sub-section 8 of Section 4, Article 6, Chapter 135, Acts of the Legislature, 1949, Regular Session.

2. In the absence of the request mentioned in Sub-section 8, Section 4, Article 6, Chapter 135, Acts of the Legislature, 1949, Regular Session, the right to unemployment compensation is preserved to those employees who received partial or no vacation pay, who have been rendered involuntarily and partially unemployed by reason of a mass vacation and the consequential suspension of operations at the plant where employed.

3. Employees who are unemployed by reason of their request, or the request of their duly authorized agent for a mass vacation at a specified time, which request is acceded to by their employer, leaving no alternative to such employer but to suspend operations, are precluded from claiming unemployment compensation benefits.

4. An employer's account will be charged with the amounts paid for unemployment compensation benefits to their employees who have been rendered involuntarily and partially unemployed.

Dayton, Campbell & Love, Charleston, Paul, Lawrence & Rock, Thomas W. Moses, Pittsburgh, Pa., for petitioners in Nos. 10536 and 10550.

Perry S. Poffenbarger, James G. Jeter, Jr., Charleston, for petitioners in No. 10552.

Perry S. Poffenbarger, James G. Jeter, Jr., Charleston, for respondents in Nos. 10536 and 10550.

Dayton, Campbell & Love, Charleston, Paul, Lawrence & Rock, Thomas W. Moses, Pittsburgh, Pa., for respondent Taylor, Smith & Taylor Co. in No. 10552.

Leo Loeb, Franklin W. Kern, Charleston, for respondent C. S. Davis, Director of Employment Security in Nos. 10536, 10550 and 10552.

LOVINS, Judge.

This Court granted three writs of certiorari to review three judgments rendered by the Circuit Court of Kanawha County. The proceedings on those writs were consolidated for hearing in this Court.

H. J. Bennett and other employees of the Homer Laughlin China Company, a corporation, similarly situated, applied for unemployment compensation benefits. W. J. Cline and other employees of The Edwin W. Knowles China Company, a corporation, similarly situated, also made application for unemployment compensation benefits. Irma Harmer and other employees of The Taylor, Smith & Taylor Company, a corporation, made application for unemployment compensation benefits. Where the context will permit, all of the above named persons claiming unemployment benefits will be designated hereinafter as claimants, and the employers will be designated respectively as 'Laughlin Company', 'Knowles Company', and 'Taylor Company'.

The usual procedure provided for in the unemployment compensation law was followed until the board of review was reached. That board, upon hearing the claims, denied compensation benefits in the three proceedings. The proceedings were thereafter reviewed by the Circuit Court of Kanawha County, in accordance with this Court's opinion in the case of Wilson v. Hix, W.Va., 65 S.E.2d 717. Upon hearing in the Circuit Court of Kanawha County, the decisions of the board of review were reversed in the proceedings of Harry J. Bennett, et al., against The Homer Laughlin China Co., and W. J. Cline, et al., against The Edwin M. Knowles China Co. In the proceeding of Irma Harmer, et al., against Taylor, Smith & Taylor Co., the order of the board of review was affirmed.

The action of the Circuit Court of Kanawha County resulted in granting unemployment compensation to the group of claimants employed by the Laughlin Company and the Knowles Company; and in denying unemployment compensation to the group of claimants employed by the Taylor Company.

Upon the petitions of Laughlin and Knowles Company, this Court granted writs of certiorari, and upon the petition of Irma Harmer and others, a writ of certiorari was likewise granted, to review the judgments of the Circuit Court of Kanawha County.

The parties to these proceedings and the director of employment security stipulated substantially as follows: That the facts set forth in the memoranda made by the board of review are correct; that such facts should be printed as the record in each case. It was further stipulated by the above mentioned persons that in lieu of printing the entire record in these proceedings, the memoranda opinions of the Judge of the Circuit Court of Kanawha County, West Virginia, and the orders entered by that Court, shoudl be printed, in addition to the memoranda made by the board of review. It was also stipulated that all other parts of the record be deleted unless the printing thereof should be specifically requested by counsel representing the claimants, the employers and the Department of Employment Security. The stipulation provided that the memoranda of opinions of the Judge of the Circuit Court of Kanawha County are identical in the three proceedings.

There are some facts common to all three proceedings, which are as follows: The Laughlin, the Knowles Company and the Taylor Company are manufacturers of pottery. Through their associations, they dealt with the representatives of the employees' union. By an agreement executed in November, 1944, and kept current by annual supplemental agreements, it was provided that certain employees should have an annual two weeks vacation with pay; that others should have an annual vacation of one week with pay, and that certain other employees should have a vacation without pay. Among other provisions of the contract are the following pertinent provisions: '3. The Employer shall decide whether all vacations by all qualified employees shall be taken at one time or whether they shall be staggered over the agreedon vacation period. 4. Where vacations are to be staggered, every effort shall be made to grant the vacation to each individual at the time most suitable to him. Where the number of applications for a single week is so great that production plans would be seriously upset if all were granted, then those employees who may take that week shall be determined by length of service.' '7. The company shall provide one week's vacation with pay to all employees with one year's service.' '12. The vacation season shall begin June 1st and end December 31st.'

The contracts between the employers and their employees are identical. The absence of those employees entitled to two weeks vacation with pay, they being highly skilled, necessitated the closing of the plants of the Laughlin Company, the Knowles Company and the Taylor Company, and the cessation of operations in all three plants at the times hereafter mentioned.

The Laughlin Company, prior to the year, 1949, had granted 'staggered' vacations, thus keeping its plant in operation. The Laughlin Company, as disclosed by this record, gained the impression that a vacation should be given to all of their employees at one time, which would require the closing of their plant during such time. The decision to take a mass vacation was communicated to the shop committee of the employees. The plant superintendent of the Laughlin Company met the representatives of the employees and discussed the matter of a vacation. No criticism was voiced by the employees. The Laughlin Company published a notice on May 21, 1949, to the effect that work would be suspended on July 1, 1949, for a two weeks vacation period. In accordance with the notice, the Laughlin Company's plant ceased operation for two weeks at some time between July 1 and July 17, 1949; the exact time not being clearly shown in the record.

As of July 1, 1949, the Laughlin Company had 3425 employees. 1362 of their employees were entitled to two weeks vacation with pay; 1374 of their employees were entitled to one week vacation with pay and 689 of their employees were entitled to a vacation without pay.

In this proceeding, those receiving two weeks vacation are not involved. The employees receiving one week vacation with pay claim one week's unemployment compensation benefits. The employees receiving no paid vacation claim two weeks similar benefits.

In the proceeding concerning the Knowles Company, the facts are not substantially different from those in the Laughlin Company. For some time, prior to the year, 1949, it had been the practice of the Knowles Company to give a mass vacation to their employees. A notice was published by the Knowles Company that the vacation period for their employees would extend from July 3 through July 16, 1949, and in accordance with such notice, the plant ceased operation during that period. No complaint or unfavorable reaction from the employees was made or manifested.

At the commencement of the vacation period, the Knowles Company employed 1872 persons. Approximately 401 of those employees were entitled to receive two weeks vacation with pay, and are not involved in this proceeding. 355 of the Knowles Company's employees were entitled to receive vacation with pay for one week; and approximately 113 of that Company's employees were not entitled to receive any paid vacation. The last two groups are claimants in this proceeding.

In the proceeding in which the employees of the Taylor Company claimed unemployment compensation, the record shows that the representatives of the Taylor Company and the shop committee, representing the employees, at a meeting held prior to July 4, 1949, agreed that there should be a vacation period for all employees, commencing on July 4 and ending on July 17, 1949. The number of persons employed by the Taylor Company is not clearly shown in the record, but according to the...